UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 


SCHOOL  OF  LAW 
LIBRARY 


CASES 


ON 


QUASI-CONTRACTS 


EDITED  WITH  NOTES  AND  REFERENCES 


BY 

JAMES  BROWN  SCOTT 

A.M.    (HARV.);    J.U.D.   (HEIDELBERG) 
PROFESSOR  OF  LAW  IN  COLUMBIA  UNIVERSITY 


"Justice  is  the  great  interest  of  man  on  earth." 
Webster  on  Justice  Story  (1345). 

"  Justice,  moral  fitness,  and  public  convenience, 
when  applied  to  a  new  subject,  make  common  law 
without  a  precedent ;  much  more,  when  received 
and  approved  by  tisage." 

Per  Willes,  J.,  in  Millar  v.  Taylor 
(1769)  4  Burr.  S312. 


NEW  YORK 

BAKER,    V00RHI8    &    COMPANY 

1905 


copyuight,  1905 
By  Bakek,  Vooruis  &  Company 

T 
\^05      ' 


r^ 


INSCRIBED   TO 

JAMES  BARR  AMES 

an  obligation 
implii:d  in 

LAW 


G67340 


PKEFACE 

The  present  collection  of  cases  on  Quasi-Contracts  is  prepared  to 
meet  the  needs  of  classroom  instruction  of  not  more  than  three  hours 
a  week  during  half  a  year. 

While  a  case-book  as  such  can  make  little  or  no  pretence  to  origi- 
nality in  any  way,  attention  is  called  to  the  historical  treatment  of 
the  subject  in  the  first  eighteen  pages  of  the  book,  whereby  the  quasi- 
contract  of  the  present  day  is  treated  as  a  natural,  if  unconscious, 
development  of  the  quasi-contract  of  the  Eoman  Law.  To  make 
clear  this  connection,  frequent  reference  is  made  in  the  footnotes  to 
the  Eoman  and  modern  Civil  Law  of  the  Continent  and  Spanish- 
American  States.  It  is  hoped  that  the  law  of  Quasi-Contract  gains 
in  importance  and  precision,  as  it  certainly  does  in  antiquity  and 
dignity,  by  treatment  as  a  part  of  a  larger  and  well-nigh  universal 
system  of  law. 

In  the  next  place,  the  arrangement  is  different  from  that  with 
which  the  public  is  familiar.  The  present  collection  follows,  and 
necessarily,  Mr.  Ames's  classification  of  the  nature  and  extent  of 
quasi-contract,  as  did  Judge  Keener,  both  in  his  Cases  and  Treatise; 
but  the  non-contractual  aspect  of  the  subject  is  accentuated  from 
the  very  beginning.  After  the  introductory  matter  of  Book  I.,  the 
obligation  is  considered  as  existing,  independent  of  any  contract, 
and,  indeed,  its  existence  is  in  itself  the  negation  of  contract.  As,  for 
example,  the  obligation  of  restitution  when  defendant  acquired  the 
plaintiff's  property  by  a  tort,  or  where  the  money  in  question  was 
paid  by  the  plaintiff  under  duress,  legal  or  equitable,  or  under  com- 
pulsion of  legal  process.  Then  recovery  is  considered  when  a  con- 
tract exists,  but  the  contract  itself  is  due  to  mistake  of  law  or  fact.  In 
the  next  place,  the  question  of  recovery  in  quasi-contract  is  considered 
when  the  contract  is  impossible  of  performance;  when  the  contract 
is  illegal;  when  the  contract  is  unenforceable  under  the  Statute  of 
Frauds.  The  collection  ends  with  what  may  be  considered  the  cul- 
mination of  Quasi-Contract.  namely :  the  repudiation  of  the  contract 


VI  PREFACE 

by  defendant  or  plaintiff,  as  in  Britton  v.  Turner  (page  753),  and  a 
recovery  is  sought  on  a  quantum  meruit  notwithstanding  the  legal  as 
well  as  practical  existence  of  the  contract.  An  examination  of  the 
full  and  detailed  table  of  contents  will  render  superfluous  any  further 
analysis  of  the  arrangement  and  underlying  theory  of  the  collection. 

In  the  third  place,  it  is  hoped  that  the  annotations  and  references 
in  the  footnotes  will  make  it  possible  for  the  serious-minded  student 
to  carry  his  studies  beyond  the  English  well  into  the  foreign  law  of 
quasi-contract.  The  annotations  are  not,  except  in  rare  instances, 
merely  cumulative;  but  aim  rather  to  call  attention  to  various  re- 
finements and  subtleties  of  the  doctrine  which  it  was  impossible  to 
set  forth  at  large  in  the  text. 

The  publishers  placed  Professor  Keener's  Cases  at  the  editor's 
disposal,  and  the  Treatise,  as  well  as  the  Cases  were  constantly  con- 
sulted in  preparing  the  present  collection,  so  that  it  is  believed  that  no 
really  leading  case  contained  in  either  work  has  been  overlooked.  If 
not  printed  at  large  in  the  text,  it  will  probably  be  found  in  the  foot- 
notes by  way  of  annotation.  But  unless  the  case  seemed  indispensable, 
the  editor  preferred,  as  a  rule,  shorter  cases,  selected  with  reference 
to  the  geography  of  the  country  as  a  whole.  New  England  and  the 
Atlantic  seaboard  have  not  l)een  neglected;  but  a  goodly  number  of 
cases  were  chosen  from  the  Middle  West,  and  Texas  and  the  Pacific 
coast  are  represented.  Louisiana  and  Scotland  were  drawn  upon  espe- 
cially for  the  civil  law  in  an  English  garb. 

Had  Judge  Keener's  collection  been  a  half  to  a  third  shorter,  the 
present  editor  would  not  have  undertaken  the  comparatively  thank- 
less and  irksome  compilation  of  a  case-book. 

The  editor  takes  this  opportunity  of  thanking  publicly  the  follow- 
ing friends,  through  whose  kindness  and  courtesy  the  labors  of  selec- 
tion and  annotation  were  much  lightened: 

Professor  James  Barr  Ames,  Dean  of  the  Harvard  Law  School, 
who  placed  his  numerous  manuscript  annotations  and  notes  at  the 
editor's  disposal,  A  glance  at  the  text  will  show  the  indebtedness, 
and  whenever  a  note  is  printed  in  the  exact  language  of  ]\[r.  Ames, 
credit  is  duly  given.  Professor  Wam])nugh,  also  of  the  Harvard  Law 
School,  and  Professor  Kirchwey,  Dean  of  the  Columbia  School  of  Law, 
were  equally  kind  in  this  particular,  and  the  ])ook  owes  not  a  little 
to  their  friendly  suggestions. 

And  finally,  the  editor  tenders  his  sincere  thanks  to  Christopher  B. 


PREFACE  Vll 

Wyatt,  Esq.,  of  the  New  York  Bar,  for  valuable  assistance  in  the 
section  devoted  to  illegal  contracts,  and  to  J.  Keuben  Clark,  Jr.,  also 
of  the  New  York  Bar,  whoso  aid  extended  from  the  beginning  to  the 
end  of  the  book,  and  whose  devotion  in  the  matter  of  annotation  and 
verification  it  is  a  duty  as  well  as  a  pleasure  to  acknowledge. 

James  Brown  Scott. 
Columbia  University, 
September  1,  1905. 


CONTENTS 


BOOK  L 
THE    SOURCES,    EXTENT    AND    NATURE    OF    QUASI-CONTRACT. 

CHAPTER  I. 

Sources  of  the  Obligation 1 

CHAPTER  II. 

Extent  of  the  Obligation 19 

Sec.     I.     Obligation  Arises  from  a  Record 19 

Sec.  II.     Obligation  Arises  from  a  Duty 26 

1.  Customary    26 

2.  Official   29 

3.  Statutory  32 

Sec.  III.     Obligation  Arises  from  an  Unjust  Enrichment.  33 

Sec.  IV.     Obligation  Arises  from  a  Negotiorum  Gestio...  37 

CHAPTER  III. 

Nature  of  the  Obligation 42 

Sec.     I.     Wherein   Quasi-Contract   Differs   from   a   Pure 

Contract    42 

1.  Effect  of  Statute  of  Limitations 42 

2.  Set-off    and     Counterclaim,     Attachment     and 

Arrest  in  Quasi-Contract 56 

3.  Contract  versus  Quasi-Contract 75 

Sec.  II.    Wherein  Quasi-Contract  Differs  from  a  Tort..  85 


X  CONTENTS 

BOOK  11. 

THE    OBLIGATION    OF    QUASI-CONTRACT. 

CHAPTER  I. 

Where  there  is  no  Contract,  Actually  or  in  Contempla- 
tion OF  the  Parties 107 

Sec.       I.     Where  the  Plaintiff  has  Suffered  a  Tort....   107 

1.  Waiver  of  Tort  Action 107 

2.  Election  of  Remedies 137 

Sec.     II.     Money  Paid  by  Plaintiff  Under  Compulsion  . .   154 

1.  Under  Duress,  Legal  or  Equitable 154 

2.  Under  Compulsion  of  Legal  Process   189 

3.  In  Discharge  of  an  Obligation 227 

(a)   The  Doctrine  in  General 227 

(h)   Specific  Applications  of  the  Doctrine.  . . .   238 
Sec.  III.     The  Defendant  has  Received  a  Benefit  at  the 

Plaintiff's   Hand    280 

1.  The  Benefit  was  Conferred  without  Request.  . .   280 

(a)  The  Plaintiff  Intended  to  Benefit  De- 
fendant      280 

(&)   Plaintiff    Intended    to    Benefit    Himself, 

not  the  Defendant    307 

2.  The  Benefit  was  Conferred  at  Request,  but  not 

in  the' Creation  or  Performance  of  a  Contract.  336 


CHAPTER  II. 

A    Contractual    Relation    Exists,    but    One    Party    has 
Failed  to  Receive  an  Equivalent  ton  nis  Outlay 352 

Sec.      I.     The  Failure  is  Due  to  a  Mistake 352 

1.  The  Mistake  may  be  as  to  Law  or  Fact 352 

2.  Mistakes  of  Fact  may  be: 

(a)   As  to  the  Creation  of  a  Contract 407 

(&)  As  to  the  Subject  Matter  of  a  Contract. .  439 

(1)  Mistake  mav  be  as  to  the  Existence 

or  Identify  of  the  Subject  Matter.  .  439 

(2)  Mistake  may  be  as  to  the  Validity, 
the  Amount  of  tlic  Claim,  or  as  to  a 
Collateral   Fact    483 


CONTENTS  XI 

3.  Considerations    Atl'ecting    the    Recovery    for    a 

Mistake  of   Fact    541 

(a)   The     D(^fen(lant     must     have     Keceived 
Money  6t  its  Equivalent,  which  ex  cequo 

et  bono  he  may  not  Retain 541 

(&)   The   Necessity  of   Demand 5G0 

(c)  The  Effect  of  a  Change  of  Position  by 
Either  Party    5G8 

(d)  The  Effect  of  Plaintiff's  Negligence 582 

(c)   The  Defence  of  a  Purchaser  for  Value.  .   591 

Sec.  II.  The  Failure  is  Due  to  Non-peuforman'ce  of  the 
Contract  or  a  Condition  Thereof  by  One 
Party  G03 

1.  The  Default  is  Defended  on  the  Ground  that : — 

(a)   Performance  is  Impossible    G03 

(1)  The     Defendant     Pleads     Impossi- 
bility      G03 

(2)  The  Plaintiff  Pleads  Impossibility.   GIG 
(h)   The  Contract  is  Illegal GGO 

(1)  The  Facts  upon  which  the  Illegality 
Depends  are  Unknown  to  One  Party.  660 

(2)  The  Facts  upon  which  the  Illegality 
Depends  are  Known  to  Both  Parties.  663 

(c)  The  Contract  is  Unenforceal)le  Under  the 

Statute  of  Frauds 686 

(1)  The  Defendant  is  in  Default 686 

(2)  The  Plaintiff  is  in  Default TOG 

2.  The  Default  is  Wilful  and  Inexcusable 713 

(a)   The  Defendant  is  in  Default 713 

(h)  The  Plaintiff  is  in  Default 735 


TABLE  OF  CASES 


Abbott  V.  Allen 
Abbott  V.  Inskip 
Aikin  v.  Short 
Allegheny  v.  Giier 
Anonymous 
Appleton  V.   Bascom 
Argyle  v.  Ilalcraig 
Asher  v.  W'allis 
Astley  V.  Reynolds 
Atwell  V.  Zeluff 
Augner  v.  Mayor 


PA(JE 

475 
710 
530 
3!)3 
33,  8G,  714,  740 
252 
568 
131 
170 
215 
81 


Bachelder  v.  Fisk  259 
Bailey  v.  Bussing  269 
Baldwin  Bros.  v.  Potter  682 
Bank  of  Chillicothe  v.  Dodge  391 
Bank  of  Nashua  v.  Van  Vooris  64 
Bank  of  Omaha  v.  Mastin  Bank  522 
Barber  v.  Dennis  134 
Barlow  v.  Bell  313 
Bartholomew  v.  Jackson  295 
Batard  v.  Howes  264 
Battersey's  Case  268 
Benson  v.  Monroe  213 
Bilbie  v.  Lumley  355 
Billings  V.  Inhabitants  of  Mon- 
mouth 425 
Birkley  v.  Presgrave  239 
Bishop  of  Winchester  r.  Knight  86 
Bize  V.  Dickason  353 
Blood  I'.  Wilson  746 
Bonnel  v.  Fouke  352 
Bosanquett  v.  Dashwood  156 
Boston  Ice  Co.  v.  Potter  300 
Bower  v.  Thompson  566 
Braithwaite  v.  Akin  117 
Bree  r.  Holbech  439 
Bright  V.  Boyd  314 
Brisbane  r.  Daores  358 
}?ritton  V.  Turner  753 
Brown  v.  Hodgson  227 
Brown  v.   Woodbury  733 


Browning  v.  Morris 
Bryant's  Estate,  In  re 
Buel  V.  Boughton 
Buller  V.  Harrison 
Butterfield  v.  Byron 


PAGE 

669 
40 
551 
570 
654 

306 
518 
296 
200 
593 
541 
737 
182,  204 


Cahill  V.  Hall 

Calkins  v.  Griswold 

Calvert  v.  Aldrich 

Carey  v.  Prentice 

Cathcart  v.  Moodie 

Cavendish  v.  Middleton 

Champlin  v.  Rowley 

Chandler   v.   Sanger 

Chesapeake  &  Ohio  Canal  Co.  v. 

Knapp  719 

City  of  London  v.  Goree  27 

Clark  V.  Eckroyd  578 

Clark  V.  Manchester  726 

Clark  V.  Pinney  197 

Collier  v.  Coates  706 

Cook  V.  Doggett  689 
County  of  Allegheny  v.  Grier         393 

Crosse  v.  Gardner  461 
Crumlish's   Adm'r  v.   Cent.   Imp. 

Co.  280 

Culbreath   v.   Culbreath  368 

Curteis  v.  Bridges  134 

Cutter  r.  Powell  632 

Daimouth  v.  Bennett  166 

Dale's  Case  460 

Dale  V.  Sollet  542 

Dambmann  v.   Schultung  533 

Davies  r.  Humphreys  262 

Dawson  v.  Linton  228 

Day  r.  N.  Y.  Cent.  R.R.  Co.  698 

Decker  v.  Pope  251 

Decring  r.  Winchelsea  255 

Donahue  i-.  Donahue  343 

Dowling  V.  McKonney  702 

Dupleix  r.  Do  Roven  19 


XIV 


TABLE  OF  CASES 


Dusenbury  v.  Speir 

Dutch  V.  Warren  7, 

D'Utricht  v.  Melchor 

Duval  V.  Wellman 

Eades  v.  Vandeput 

Eicholz  V.   Bannister 

Elliott  V.  Swartwout 

Ellis  &  Morton  v.  Ohio  Life  Ins. 

Co. 
Erkens  v.  Nicolin 

Farmer  v.  Arundel 

Fellows  V.  School  District 

Ferguson  v.  Carrington 

Ferns  v.  Carr 

Ferrill's  Adm.  v.  Mooney's  Ex. 

First  Baptist  Church  v.  Caughey 

First    Nat.    Bank    of    Nashua    v. 

Van  Vooris 
First    Nat.    Bank    of    Omaha    v. 

Mastin   Bank 


CAGE 

PAGE 

68 

Helm  V.  Wilson 

741 

713 

Henderson   v.    Folkestone 

Water 

441 

Works 

360 

677 

Hickam  v.  Hickam 

344 

Hicks  V.  Palington 

239 

134 

Highwayman's  Case,  The 

666 

467 

Hill  V.  Re  Wee 

443 

221 

Hindmach  v.  Hoffman 

109 

Hitchin  v.  Campbell 

137 

488 

Hodgson  V.  Harris 

46 

404 

Hoffman  &  Co.  v.  Bank 

of  Mil- 

waukee 

529 

543 

HoUis  V.  Edwards 

686 

217 

Hosmer  v.  Barret 

197 

121 

Huffman  v.  Hughlett  & 

Pyatt 

149 

611 

Hull  V.  Bank  of  South  ( 

[IJarolina 

524 

106 

Hurley  v.  Lamoreaux 

98 

420 

64 


Fleetwood  v.  Charnock 

255 

Ford  V.  Stobridge 

250 

Forsyth  v.  Ganson 

290 

Francisco  Garguilo,  The 

32 

Frank  v.  Lanier 

452 

Frost  V.  Raymond 

477 

Fuller  V.  Tuska 

565 

Galvin  v.  Prentice 

711 

Gillett  V.  Brewster 

564 

Gillie  V.  Grant 

396 

Gordon  v.  Bruner 

62 

Grant  v.  Easton 

21 

Great  Northern  Ry.  Co.  v.  Swaf- 

field 

233 

Greenbaiim  v.  Elliott 

194 

(Jriswold  V.  Bragg 

323 

Grymes  v.  Bloficld 

280 

Hambly  V.  Trott 

87 

Harding  v.   Freeman 

461 

Hardy    &    Bros.    v.    Chesapeake 

Bank 

505 

Harris  v.  Loyd 

532 

Haven  v.  Foster 

384 

Haynes  &  Co.  v.  Second 

Baptist 

Church 

646 

Head  v.  Porter 

99 

Hlinois  Trust  &  Savings  Bank  v. 

Felsenthal  554 

hi  re  Bryant's  Estate  40 

Irving  V.  Wilson  174 
Isle  Royal  Mining  Co.  v.  Hertin  333 

Jack  V.  Fiddes  189 

Jackson  v.  McKnight  553 

Jackson  v.  Rogers  28 

James   v.   Cavit's   Adm.  190 

Jellison  v.  Jordan  691 

Joannin  v.  Ogilvie  184 

Johnston  v.  Commercial  Bank       506 

Jones  V.  Judd  641 

Jones  V.  Pope  44 

Jones  V.  Ryde  444 

Kelly  V.  Solari  582 

Kelly  V.  Thompson  705 

Ker  V.  Rutherford  568 

Kilgour  V.  Finlyson  413 

King  V.  Brown  688 

King  v.  Moore  31 
Kirkman  Ex.  v.  Philips's  Heirs     126 

Kitchen  i\  Campbell  137 

Knowles  v.  Bovill  615 

Knowlman  d.  Bluett  693 

Koch  V.  Williams  696 

La  Du-King  Mfg.  Co.  v.  La  Du     694 

Lamine  v.  Dorrell  107 

Lantz  V.  Frey  340 


TABLE  OF  CASES 


XV 


PAGE 

Layer  v.  Nelson 

251 

Leatlicr  Manufacturers'  Bank  v. 

Merchants'   Bank 

560 

Leather   v.   Simpson 

527 

Lenians  v.  Wiley 

537 

Lewis  V.  Canij)bell 

220 

Liphtlj'  V.  Clouston 

L35 

Linden  v.  Hooper 

170 

Livingston  v.  Ackerston 

337 

London   (city  of)   v.  Goree 

27 

Luke  V.  Lyde 

GIG 

Mackrell  v.  Simond  &  Hankey 

621 

AIcMillan    v.   V'anderlip 

749 

Mansfield  t'.  Lynch 

376 

Mar  V.  Callander 

591 

Marsh  v.  Pier 

142 

Martin  v.  McCormick 

480 

Martin  v.  Sitwell 

407 

Marston  v.  Swett 

430 

Alattlage  v.  Lewi 

558 

Mayer  v.  Mayor  of  N.  Y. 

515 

Mayor  of  Baltimore  v.  Lefferman 

207 

Menetone  v.  Athawes 

643 

Merchants'  Ins  Co.  v.  Abbott 

594 

Merryweather  t;.  Nixan 

269 

Miller  i;.  Miller 

111 

Miner  v.  Bradley 

723 

Morley  v.  Attenborough 

462 

Morris  v.  Tarin 

544 

Moses  V.  Macferlan                       4, 

100 

Mowatt  V.  Wright 

399 

Mussen  v.  Fales 

660 

Newhall  v.  Tomlinson  575 

N.  Y.  Life  Ins.  Co.  v.   Statham  627 

Nicholson  i\  Chapman  286 

Norden  t'.  Jones  114 

Gates  V.  Hudson  175 

Osborn  r.  Bell  93 

Osborn    v.    (Governors    of    Guy's 

Hospital  336 

Oxendale  v.  Wetherell  735 

/ 

Palmer  r.  Wick  &   Pultencytown 

Co.                                          '  275 

Parker   r.   Macomber  (!36 

Parsons  v.  Moses  321 


PAGE 

Patterson  v.  Patterson  292 

Pease  v.  Howard  49 

Peerce  v.  Kitzmiller  22 

People  ex  rel  Dusenbury  v.  Speir  68 

Pcrkinson  v.  Gilford  85 
Perry  v.  Newcastle  Mut.  Fire  Ins. 

Co.  585 
Pickslay  v.  Starr  283 
Pinches  V.  Swedish  Evang.  Luth- 
eran Church  747 
Pirie  &  Co.  v.  Middle  Dock  Co.  243 
Piatt  V.  Bromage  549 
Police  Jury  v.  Hampton  37 
Porter  v.  Tull  557 
Preston  v.  City  of  Boston  204 
Price  V.  Neal  483 

Railroad  Nat.  Bank  v.  Lowell  423 

Ralli  V.  Troop  246 

Reeder/u.  Anderson's  Adm'rs.  289 

Reid  V.  Rigby  417 

Reina  v.  Cross  007 
Richards,     Adm'r      v.      Bickley, 

Adm'r  51 

Richardson  v.  Duncan  201 

Richardson  v.  Young  623 

Robinson  v.  Bright's  Ex.  458 

Robinson  v.  Gumming  283 

Roswel  V.  \aughan  471 

Roth   V.  Palmer  122 

Sceva  V.  True  75 

Scott  V.  Stephenson  250 

Scroggs  r.  Taylor  314 

Serjeant  Maynard's  Case  473 

Shearer  r.  Fowler  433 

Sherwin  v.  Cartwright  42 

Sinionds  &  Loder  v.  White  241 

Skj'ring  v.   Greenwood  &    Cox  572 

Smith  V.  Bromley  159 

Smout  I'.  Ilbery  434 

Solinger  r.  Earle  162 

Sollers  r.  Lawrence  104 

Speake  r.   Richards  29 
Stanley    Rule    «i     Level     Co.     i*. 

Bailoy  500 

Starr   Ca^h    Co.    r.   Rcinhardt  118 

Stcpliens  V.  Board  of  Kducation  535 

Stevenson    r.    Snow  410 

Stokes  ft  III.  V.  Lewis  ct  al.  285 


XVI 


TABLE  OF  CASES 


PAGE 

Stowe  r.  Buttrick 

729 

Straton  i;.  Rastall 

546 

Swires  v.  Parsons 

339 

Talory  v.  Jackson 

43 

Tappenden  v.  Randall 

6G3 

Tarling  v.  Baxter 

447 

Taylor  v.  Hare 

428 

Tenant  v.  Elliott 

681 

Thompson  v.  Gould 

453 

Tilton  V.  Gordon 

192 

Tomkins  v.  Bernet 

154 

Towers  v.  Barrett 

715 

Turner  &  Otis  v.  Webster 

348 

Turner  v.  Robinson 

752 

Tutt  r.  Ide 

177 

U,  S.  V.  Pacific  R.R.  Co. 

303 

U.  S.  V.  Reid 

74 

Valentini  v.  Canali 

437 

Van  Deusen  v.  Blum 

415 

PAGE 

603 
112 

6G7 
220 
307 


Watson  V.  Duykinck 
Watson  V.  Stever 
Webb  V.  Fulchire 
Wells  V.  Porter  &  Cronkhite 
Welsh  V.  Welsh 
Welston  Coal  Co.  v.  Franklin  Pa- 
per Co.  729 
Western  Ass.  Co.  v.  Towle  127 
White's  Case  26 
White  V.  Franklin  Bank  672 
Wilbur  V.  Gilmore  141 
Williams  v.  Gibbes  328 
Williams  v.  Jones  20 
Wilson  et  ux.  v.  Towle  46 
Winchester       (Bishop      of)       v. 

Knight  86 

Woods  V.  Ayres  56 
Wormleighton   v.    Hunter's    Case  254 

Wright  V.  Newton  609 

Young  V.  City  of  Chieopee  652 

Young  V.  Cole  450 


CASES  ON    QUASI-CONTRACTS 


BOOK    I. 
THE  SOURCES,  EXTENT  AND  NATURE  OF  QUASI-CONTRACTS. 


CHAPTER    I. 
Sources  of  the  Obligations. 


INSTITUTES  OF  JUSTINIAN   (533  A.D.),  BOOK  III.,  TITLE  XXVII. 

De  Ohligationihus  Quasi  ex  Contractu. 

Having  enumerated  tlie  different  kinds  of  contracts,  let  us  now  ex- 
amine those  obligations  also  which  do  not  originate,  properly  speaking, 
in  contract,  but  which,  as  they  do  not  arise  from  a  delict,  seem  to  be 
quasi-contractual. 

1.  Thus,  if  one  man  has  managed  the  business  of  another  during 
the  latter's  absence,  each  can  sue  the  other  by  the  action  on  uncom- 
missioned agency;  the  direct  action  being  available  to  liim  whose 
business  was  managed,  the  contrary  action  to  him  who  managed  it. 
It  is  clear  that  these  actions  cannot  properly  be  said  to  originate  in 
a  contract,  for  their  peculiarity  is  that  they  lie  only  where  one  man 
has  come  forward  and  managed  the  business  of  another  without 
having  received  any  commission  so  to  do,  and  that  other  is  thereby 
laid  under  a  legal  obligation  even  though  he  knows  nothing  of  what 
has  taken  place.  The  reason  of  this  is  the  general  convenience; 
otherwise  people  might  be  summoned  away  by  some  sudden  event 
of  pressing  importance,  and  without  commissioning  any  one  to  look 
after  and  manage  their  affairs,  the  result  of  which  would  be  that 
during  their  absence  those  affairs  would  be  entirely  neglected:  and 
of  course  no  one  would  be  likely  to  attend  to  them  if  he  were  to  have 
no  action  for  the  recovery  of  any  outlay  he  might  have  incurred  in 
so  doing.  Conversely,  as  the  uncommissioned  agent,  if  his  manage- 
ment is  good,  lays  his  principal  under  a  legal  obligation,  so  too  he 
is  himself  answerable  to  the  latter  for  an  account  of  his  manage- 
ment; and  herein  he  must  show  that  he  has  satisfied  the  highest 
standard  of  carefulness,  for  to  have  displayed  such  carefulness  as 
he  is  wont  to  exercise  in  his  own  affairs  is  not  enough,  if  only  a  more 
diligent  person  could  have  managed  the  business  better. 

2.  Guardians  again,  who  can  be  sued  by  the  action  on  guardian- 


2  SOURCES,  EXTENT  AND  NATURE  OF  QUASI-CONTRACTS.       [bOOK  I. 

ship,  cannot  properly  be  said  to  be  bound  by  contract,  for  there  is 
no  contract  between  guardian  and  ward:  but  their  obligation,  as  it 
certainly  does  not  originate  in  delict,  may  be  said  to  be  quasi-contrac- 
tual. In  this  case  too  each  party  has  a  remedy  against  the  other :  not 
only  can  the  ward  sue  the  guardian  directly  on  the  guardianship, 
but  the  guardian  can  also  sue  the  ward  by  the  contrary  action  of  the 
same  name,  if  he  has  either  incurred  any  outlay  in  managing  the 
ward's  property,  or  bound  himself  on  his  behalf,  or  pledged  his  own 
property  as  security  for  the  ward's  creditors. 

3.  Again,  where  persons  own  property  Jointly  without  being  part- 
ners, by  having,  for  instance,  a  joint  bequest  or  gift  made  to  them, 
and  one  of  them  is  liable  to  be  sued  by  the  other  in  a  partition  suit 
because  he  alone  has  taken  its  fruits,  or  because  the  plaintiff  has  laid 
out  money  on  it  in  necessary  expenses :  here  the  defendant  cannot 
properly  be  said  to  be  bound  by  contract,  for  there  has  been  no  con- 
tract made  between  the  parties;  but  as  his  obligation  is  not  based  on 
delict,  it  may  be  said  to  be  quasi-contractual. 

4.  The  case  is  exactly  the  same  between  joint  heirs,  one  of  whom 
is  liable  to  be  sued  by  the  other  on  one  of  these  grounds  in  an  action 
for  partition  of  the  inheritance. 

5.  So  too  the  obligation  of  an  heir  to  discharge  legacies  cannot 
properly  be  called  contractual,  for  it  cannot  be  said  that  the  legatee- 
has  contracted  at  all  with  either  the  heir  or  the  testator:  yet,  as  the 
heir  is  not  bound  by  a  delict,  his  obligation  would  seem  to  be  quasi- 
contractual. 

6.  Again,  a  person  to  whom  money  not  owed  is  paid  by  mistake- 
is  thereby  laid  under  a  quasi-contractual  obligation ;  an  obligation, 
indeed,  which  is  so  far  from  being  contractual,  that,  logically,  it 
may  be  said  to  arise  from  the  extinction  rather  than  from  the  forma- 
tion of  a  contract ;  for  when  a  man  pays  over  money,  intending 
thereby  to  discharge  a  debt,  his  purpose  is  clearly  to  loose  a  bond  by^ 
which  he  is  already  bound,  not  to  bind  himself  by  a  fresh  one.  Still. 
the  person  to  whom  money  is  thus  paid  is  laid  under  an  obliga- 
tion exactly  as  if  he  had  taken  a  loan  for  consumption,  and  therefore 
he  is  liable  to  a  condiction. 

7.  Under  certain  circumstances  money  which  is  not  owed,  and 
which  is  paid  by  mistake,  is  not  recoverable;  the  rule  of  the  older- 
lawyers  on  this  point  being  tha^-  wherever  a  defendant's  denial  of  his 
obligation  is  punished  by  duplication  of  the  damages  to  be  recovered 
— as  in  actions  under  the  lex  .\quilia,  and  for  the  recovery  of  a 
legacy — he  cannot  get  the  money  back  on  this  plea.  The  older- 
lawyers  however  applied  this  rule  only  to  such  legacies  of  specific 
sumf^  or  objects  as  were  given  by  condemnation ;  but  by  our  consti- 
tution, by  which  we  have  assimilated  legacies  and  trust  bequests,  we 
have  made  this  duplication  of  damages  on  denial  an  incident  of  all 
actions  for  their  recovery,  provided  the  legatee  or  beneficiary  is  a  church. 


CIlAl'.    I.]       SOURCES,  EXTENT  AND  XATlKi:  OF  QUASI-CONTRACTS.  3 

or  other  holy  place  honored  for  its  devotion  to  religion  and  piety.   Such 
legacies,  although  paid  when  not  due,  cannot  be  reclaimed.* 

'J.  B.  Moyle:  Iniperatoris  lustiaiiiani  Institutioncs   (2  vols.  4th  ed.   1!J<J4). 

On  the  subject  of  Quasi-Contracts  in  the  Roman  Law,  see  Ramm:  Der 
Quasioontrac't  nach  den  Qucllen  iind  sein  Worth  fiir  Wissonschaft  und  Gesctz- 
^'chiiiif,'  (1882)  ;  Girard:  Manuel,  pp.  604-6.3:5. 

In  the  earlier  periods  of  Roman  law  the  source  of  an  obli^ration  was  twofold: 
(imnis  enim  ohlipatio  vel  ex  contractu  nasoitur  vel  ex  delicto  (Gaius,  8,  88). 
The  development  by  which  a  quasi-contract  or  quasi  delicto  was  added  to  the 
primitive  conception  of  an  obligation  is  {,'iven  by  Girard  (Manuel  de  Droit 
Romain)  : 

"Les  jurisconsulles  de  la  bonne  epoquc  se  contentaient  en  general  de  mcttie 
p§le-m6le,  dans  une  meme  cat^'gorie  un  peu  vague,  ces  obligations  qui  ne 
naissaient  ni  de  contrats  ni  de  d^lits  en  disant  simplement  qu'elles  naissaient 
de  modes  diverses  (varice  causaruin  figurce.  Gaius  D.  44,  7,  De  0.  et  A.,  1,  pr.: 
oblit/ationes  aut  ex  contractu  nasciintur  atit  ex  maleficio  ant  propria  quodam 
jure  ex  variis  caiisarinn  flguris).  Gaius  est,  a  notre  connaissance,  le  seul 
;1  avoir  propose  une  autre  division,  devcnue  beaucoup  plus  cclt'bre  parce  qu'elle 
a  pass6  dans  les  Institutes  de  Justinian :  celle  qui  met  i  cote  des  obligations 
contractuelles  les  obligations  quasi-contractuelles  {obligationes  quce  quasi  ex 
contractu  nascuntur,  oU  le  debiteur  quasi  ex  contractu  tenet ur)  et  a  c6t6  des 
obligations  dfdictuelles  les  obligations  quasi-d6lictuelles  (obligationes  quce 
quasi  ex  delicto  nascuntur,  oH  le  debiteur  quasi  ex  delicto  tenetur.  Gaius,  D., 
44,  7,  De  0.  et  A.,  5,  Inst.,  3,  13,  De  obi.,  2;  3,  27,  De  obligationibus  quasi  ex 
contractu ;  4,  5,  De  obligationibus  qna'  ijuasi  ex  delicto  nascuntur) .  Cette 
division,  plus  conipliqu(^e,  est  thf'oriquement  critiquable  et  n'  a  m§me  pas  le 
merite  d'englober  aisement  I'ensemble  des  obligations"  (3d  ed.  (1901).  pp.  387, 
388). 

And  in  a  note  to  this  passage,  the  learned  author  points  out  that  the 
division  is  not  only  too  narrow,  but  that  the  e.xpression  is  badly  chosen.  "On 
pent  dire,"  he  says,  "comme  fait  parfois  Gaius,  que  le  df>biteur  est  tenu 
(tenetur)  quasi  ex  contractu :  il  est  oblige  de  la  m§me  facon  qu'en  vertu  d"un 
contrat;  mais  il  est  tr&s  faux  de  dire,  comme  Gaius  fait  ailleurs  et  comme  fait 
Justinien  aprfes  lui,  qvie  I'obligation  nait  (nascitur)  quasi  ex  contractu,  de 
parler  avec  le  Code  civil  de  quasi-contrat:  le  caract&re  du  contrat  est  I'accord 
de  volontes,  celui  du  pri'tendu  quasi-contrat  son  absence,  il  n'y  a  done  rien 
qui  se  resemble  moins  que  leurs  ma  nitres  de  naltre." 

For  the  various  questions  of  Roman  Law  the  student  is  referred  to  Wind- 
scheid's  Lehrbuch  des  Pandektenrechls  (3  vols.),  as  the  most  scientific  and 
satisfactory  German  work  on  the  subject,  where  the  whole  literature  is  given 
on  the  various  topics.  Of  this  work,  the  eighth  edition  (1000-1901).  by  Dr. 
Theodor  Kipp,  is  the  most  valuable,  ns  it  incorporates  in  the  text  the  cor- 
responding sections  of  the  German  Code  (Das  Biirgerliehe  Gesetzbuch  I .  wliich 
went   into  efTect  in   1900. 

Hunter's  Roman  Law  in  the  Order  of  a  Code  (3d  ed.,  1897)  :  Ledlie's  trans- 
lation of  Sohm's  Institutes  of  Roman  Law  (2d  ed.,  1901)  will  answqj-  the 
needs  of  the  English  reader.  See  the  section  on  Quasi-Contracts,  pp.  423-429. 
Robinson's  Selections  from  the  Public  and  Private  Law  of  the  Romans  (1905) 
is  an  excellent  little  work  and  might  well  be  used  in  connection  with  any  text 
book  on  Roman  Law. — Ed. 


4  MOSES   V.   MACFERLAN.  [BOOK   I. 

HENRY  OF  BRACTON  :   LAWS  AXD  CUSTOMS  OF  ENGLAND. 

(Book  III.,  Fol.  100,  ^  10.) 

Having  spoken  of  obligations  which  arise  ex  contractu,  it  is  now 
necessary  to  consider  obligations  which  arise  quasi  ex  contractu.  And 
it  should  be  noted  that  actions  arise  quasi  ex  contractu  in  cases  of 
negotioruni  gestio,  wardship,  the  division  of  common  property,  the 
distribution  of  an  inheritance,  on  an  action  on  a  testament,  a  suit 
to  recover  money  paid  by  mistake,  and  the  like.^ 


MOSES  V.  MACFERLAN. 

King's  Bench,  1760. 

[2  Burrow,  1005. "] 

Moses  had  four  Notes  of  one  Chapman  Jacoh,  dated  11th  July  1757, 
Value  30s.  each.  Macplierlan.  7th  November  1758,  prevailed  upon 
Moses,  to  indorse  these  Notes  to  him,  upon  an  express  written  Agrce- 
ment,  to  indemnify  Moses  againsi:  all  Consequences  of  such  Indorse- 
ment,^nd  that  no  Suit  should  be  brought  against  Moses  the  Indorser, 
but  only  against  Jacob  the  Drawer.  Notwithstanding  which,  Mac- 
plierlan brought  four  Actions  in  the  Court  of  Conscience,  upon  these 
very  Notes  against  Moses;  and,  upon  Trial  of  the  first,  the  Commis- 
sioners refused  to  go  into  any  Evidence  of  this  Agreement ;  where- 
upon the  Plaintiff  recovered,  and  the  Defendant  paid  the  whole  £6. 
And  now  Moses,  the  Defendant  below,  ])roucrht  Inrlrbitatits  assumpsit 
against  Macplierlan,  the  Plaintiff  below,  for  ]\Ioney  had  and  received 
to  his  Use,  and  obtained  a  Verdict  for  £6  subject  to  the  Opinion  of  this 
Court. 

Morion  (for  Defendant  Macplierlan)  argued,  that  Indebitatus 
assumpsit  would  not  lie  upon  a  Judgment  recovered  in  an  inferior 
Court  of  a  final  Jurisdiction ;  and  cited  Cro.  Jac.  218.  and  1  Bulstr. 
152.  The  Remedy  in  this  Case  being  a  special  Action  on  the  Case, 
for  Breach  of  the  Agreement. 

'For  the  relation  of  Bracton  to  Roman  and  English  Law,  see  Gutterboek's 
"Bracton  and  his  Relation  to  the  Roman  Law,"  as  translated  into  English 
by  Brinton  Coxe;  2  Pollock  &  IMaitland's  History  of  En<,'lish  Law,  206-210; 
Hunter's  Roman  Law    (.3d  ed.)    100-116. 

See  also,  Howe's  Studies  in  tlie  f'ivil  Law,  172-178. — Ed. 

^This  statement  of  the  case,  incliidinfj  the  arguments  of  counsel  and  of  the 
judges,  is  taken  from  1  \Vm.  Blackstone's  Reports,  219. — Ed. 


CHAP.    I.]  MOSES   V.    MACFERLAN.  5 

Xorlon,  contra,  that  this  Action  would  well  lie,  the  Remedy  by 
Action  on  Assumpsit  being  of  the  most  liberal  and  beneficial  Kind. 

On  the  Argument,  Mansfield  Chief  Justice  doubted  if  the  Action 
would  lie,  after  a  Judgment  in  the  Court  of  Conscience;  but  wished 
to  extend  this  remedial  Action  as  far  as  might  be :  To  which  Dexison 
Justice  agreed,  and  inclined  strongly  that  the  Action  would  lie. 
Foster  Justice  was  afraid  of  the  Consequences  of  overhauling  the 
Judgment  of  a  Court  of  a  competent  Jurisdiction,  Wilmot  Justice 
was  clear  that  the  Action  would  not  lie;  because  this  Action  always 
arises  from  a  Contract  of  Repayment,  implied  by  Law;  and  it  would 
be  absurd,  if  the  Law  were  to  raise  an  Implication  in  one  Court,  con- 
trary to  its  own  express  Judgment  in  another  Court.  He  compared 
this  Action  to  the  Title  de  Solutione  Indehiti.  Inst.  3.  28.  b.  and 
de  Condictione  Indehiti  in  Cod.  and  Dig.  L.  iv,  tit.  5.  pecunicB  per 
errorem,  non  ex  causa  judicati,  solutce  esse  repetitionem  condictionis 
non  amhigitur,  in  which  there  was  always  an  Exception  Causa;  Judi- 
cati; and  this  Reason  given  for  it,  Ne  Actiones  resuscitentur. 

The  court,  having  heard  the  counsel  on  both  sides,  took  time  to 
advise. 

Lord  Mansfield  now  delivered  their  unanimous  opinion,  in  favor 
of  the  present  action. 

There  was  no  doubt  at  the  trial,  but  that  upon  the  merits  the  plaintiff 
was  entitled  to  the  money;  and  the  jury  accordingly  found  a  verdict 
for  the  £6,  subject  to  the  op-nion  of  the  court  upon  this  question, 
"Whether  the  money  might  be  recovered  by  this  form  of  action,""  or 
"must  be  by  an  action  upon  the  special  agreement  only." 

Many  other  objections,  besides  that  which  arose  at  the  trial,  have 
since  been  made  to  the  propriety  of  this  action  in  the  present  case. 

The  1st  objection  is,  "That  an  action  of  debt  would  not  lie  here ;  and 
no  assumpsit  will  lie  where  an  action  of  debt  may  not  be  brought;" 
some  sayings  at  nisi  prius,  reported  by  note-takers  who  did  not  under- 
stand the  force  of  what  was  said,  arc  quoted  in  support  of  that  propo- 
sition.   But  there  is  no  foundation  for  it. 

It  is  much  more  plausible  to  say,  "That  where  debt  lies  an  action 
upon  the  case  ought  not  to  be  brought."  And  that  was  the  point  relied 
upon  in  Slade's  case  (4  Co.  92)  ;  but  the  rule  then  settled  and  followed 
ever  since  is,  "That  an  action  of  assumpsit  will  lie  in  many  cases  where 
debt  lies,  and  in  many  where  it  does  not  lie." 

A  main  inducement,  originally,  for  encouraging  actions  of  assumpsit 
\.as,  "to  take  away  the  wager  of  law ;"  and  that  might  give  rise  to  loose 
expressions,  as  if  the  action  was  confined  to  cases  only  where  that 
reason  held. 

2d  Objection.  "That  no  assumpsit  lies  except  upon  an  express  or 
implied  contract ;  but  here  it  is  impossible  to  presume  any  contract  to 
refund  money  which  the  defendant  recovered  by  an  adverse  suit." 

Answer.     If  the  defendant  be  under  an  obligation,  from  the  ties  of 


6  MOSES    V.    MACFERLAN.  [BOOK   I. 

natural  justice,  to  refund,  the  law  inrglies  a  debtj_arrl  givos  tV|i^  nptio^, 
founded  in  the  equPFy  of  the  phiintiff's  case,  as  it  were  upon  a  contract 
{"quasi  ex  contractu/'  as  the  J{oinan  law  expresses  it). 

This  species  of  assumpsit  ("for  money  had  and  received  to  the  plain- 
tiff's use")  lies  in  numberless  instances  for  money  the  defendant  has 
received  from  a  third  person ;  which  he  claims  title  to,  in  opposition  to 
the  plaintiff's  right ;  and  which  he  had  by  law  authority  to  receive  from 
such  third  person. 

3d  Objection.  Where  money  has  been  recovered  by  the  judgment  of 
a  court  having  competent  jurisdiction,  the  matter  can  never  be  brought 
over  again  by  a  new  action. 

Answer.  It  is  most  clear  "that  the  merits  of  a  judgment  can  never 
be  over-hauled  by  an  original  suit,  either  at  law  or  in  equity."  Till  the 
judgment  is  set  aside  or  reversed,  it  is  conclusive,  as  to  the  subject- 
matter  of  it,  to  all  intents  and  purposes. 

But  the  ground  of  this  action  is  consistent  with  the  judgment  of  the 
Court  of  Conscience;  it  admits  the  commissioners  did  right.  They 
decreed  upon  the  indorsement  of  the  notes  by  the  plaintiff,  which 
indorsement  is  not  now  disputed.  The  ground  upon  which  this  action 
proceeds  was  no  defence  against  that  sentence. 

It  is  enough  for  us,  that  the  commissioners  adjudged  "they  had  no 
cognizance  of  such  collateral  matter."  We  cannot  correct  an  error  in 
their  proceedings ;  and  ought  to  suppose  what  is  done  by  a  final  juris- 
diction, to  be  right.  But  we  think  "the  commissioners  did  right,  in 
refusing  to  go  into  such  collateral  matter."  Otherwise,  by  way  of 
defence  against  a  promissory  note  for  30s..  they  might  go  into  agree- 
ments and  transactions  of  a  great  value ;  and  if  they  decreed  payment 
of  the  note,  their  judgment  might  indirectly  conclude  the  balance  of 
a  large  account. 

The  ground  of  this  action  is  not  "that  the  judgment  was_^iQiig," 
but  "that(t"or  a  reason  which  the  now  plaintiff  could  not  avail  himself 
of  against  that  judgnienF)  the  defendant  oiight  noFTiTjustice  to  keep 
the  money?'  And  at  GuiTdhall  I  declared  very  particurarTy,  "that  tTie 
m"erlts  of  a  question  determined  by  the  commissioners,  where  they  had 
jurisdiction,  never  could  be  brought  over  again  in  any  shape  whatso- 
ever." 

Money  may  be  recovered  bv  a  right  and  legal  judgment;  and  yet  the 
inir|uitv  of  keeping  that  money  may  be  manifest,  upon  grounds  which 
could  not  be  used  byjvay  of  defence  a o^i nstTtlie  jii dgmei^  ^ 

Suppose  an  indorsee  of  a  promissory  note,  having  received  payment 
from  the  drawer  (or  maker)  of  it,  sues  and  recovers  the  same  money 
from  the  indorser,  who  knew  nothing  of  such  payment. 

Suppose  a  man  recovers  upon  a  policy  for  a  ship  presumed  to  be  lost, 
which  afterwards  comes  homo ;  or  upon  the  life  of  a  man  presumed  to 
be  dead,  who  afterwards  appears ;  or  upon  a  representation  of  a  risk 
deemed  to  be  fair,  which  comes  out  afterwards  to  be  grossly  fraudulent. 


■CHAP.    I.]  MOSES    V.    MACFERLAN.  7 

But  there  is  no  occasion  to  <fo  further;  for  the  admission  "that, 
unquestionably,  an  action  nii^^iit  \)v  l)r()ught  upon  the  agreement,"  is  a 
<leeisive  answer  to  any  objection  from  the  judgment.  For  it  is  the  same 
thing,  as  to  the  force  and  validity  of  the  judgment,  and  it  is  just 
•equally  affected  by  the  action,  whether  the  plaintiff  brings  it  upon  the 
equity  of  his  case  arising  out  of  tlie  agreement,  that  the  defendant  may 
refund  the  money  he  received ;  or,  upon  the  agreement  itself,  that, 
besides  refunding  ^he  money,  he  may  pay  the  costs  and  expenses  the 
plaintiff  was  put  to. 

This  brings  tlie  whole  to  the  question  saved  at  nisi  priufi,  viz.: 
"Whether  the  plaintiff  may  elect  to  sue  by  this  form  of  action,  for  the 
money  only ;  or  must  be  turned  round,  to  bring  an  action  upon  the 
-agreement.'^ 

One  great  benefit  which  arises  to  suitors  from  the  nature  of  this 
action  is,  that  the  plaintiff  needs  not  state  the  special  circumstances 
from  which  he  concludes  "that,  ex  cequo  et  bono,  the  money  received 
by  the  defendant  ought  to  be  deemed  as  belonging  to  him ;"  he  may 
■declare  generally  "that  the  money  was  received  to  his  use,"  and  make 
<)Ut  his  case  at  the  trial. 

This  is  equally  beneficial  to  the  defendant.  It  is  the  most  favorable 
way  in  which  he  can  be  sued :  h£.caii  be  liable  no  further  than  the  money 
he.  has  received^  and  against  that  may  go  into  every  equitable  defence 
upon  the  general  issue :  he  may  claim  every  equitable  allowance ;  he 
may  prove  a  release  without  pleading  it ;  in  short,  he  may  defend  him- 
self by  everything  which  shows  that  the  plaintiff,  ex  cequo  et  bono,  is 
not  entitled  to  the  whole  of  his  demand,  or  to  any  part  of  it. 

If_the^plamtiff  elects  to  proceed  in  this  favorable  w'ay,  it  is  a  bar  to 
his  bringinff_j>nother_action  upon  the  agreement ;  though  he  might 
recover  more  upon  fhp  agrppmenf  than  he  can  by  this  form  of  action. 
And  therefore,  if  the  question  was  open  to  be  argued  upon  principles 
at  large,  there  seems  to  be  no  reason  or  utility  in  confining  the  plaintiff 
to  an  action  upon  the  special  agreement  only. 

But  the  point  has  been  long  settled,  and  there  have  been  many  prece- 
dents; I  will  mention  to  you  one  only,  which  was  very  solemnly  con- 
sidered. It  was  the  case  of  Dutch  v.  Warren,  M.  7  G.  1  C.  B.  An 
action  upon  the  case  for  money  had  and  received  to  the  plaintiff's  use. 

The  case  was  as  follows :  Fpon  the  18th  of  August.  17'-?0.  on  payment 
of  £262  10s.  by  the  plaintiff  to  the  defendant,  the  defendant  agreed  to 
transfer  him  five  shares  in  the  Welsh  copper  mines,  at  the  oi)ening  of 
the  books ;  and  for  security  of  his  so  doing  gave  him  this  note :  "18th  of 
August,  1720.  I  do  hereby  acknowledge  to  have  received  of  Philip 
Dutch  £262  10s.  as  a  consideration  for  the  purchase  of  five  shares; 
which  I  do  hereby  promise  to  transfer  to  the  said  Philip  Dutch  as  soon 
as  the  books  are  open,  being  five  shares  in  the  Welsh  copper  mines. 
Witness  my  hand.  Robert  Warren."  The  books  were  opened  on  the  22d 
•of  the  said  month  of  August.  wIumi  Uutch  requested  Warren  to  transfer 


8  MOSES    I'.    ilACFERLAN.  [BOOK    I. 

to  him  the  said  five  shares;  which  he  refused  to  do,  and  told  the  plain- 
tiff "he  might  take  his  remedy."  Whereupon  the  plaintiff  brought  this 
action  for  the  consideration-money  paid  by  him.  And  an  objection 
was  taken  at  the  trial,  "that  this  action  upon  the  case,  for  money  had 
and  received  to  the  plaintiff's  use,  would  not  lie;  but  that  the  action 
should  have  been  brought  for  the  non-performance  of  the  contract." 
This  objection  was  overruled  by  the  Chief  Justice,  who  notwithstand- 
ing left  it  to  the  consideration  of  the  jury.  Whether  they  would  not 
make  the  price  of  the  said  stock  as  it  was  upon  the  22d  of  August,  when 
it  should  have  been  delivered,  the  measure  of  the  damages;  which  they 
f  did,  and  gave  the  plaintiff  but  £175  damages. 

And  a  case  being  made  for  the  opinion  of  the  Court  of  CoiUmon 
Pleas,  the  action  was  resolved  to  be  well  brought ;  and  that  the  recovery 
was  right,  being  not  for  the  whole  money  paid,  but  for  the  damages 
in  not  transferring  the  stock  at  the  time;  which  was  a  loss  to  the 
plaintiff,  and  an  advantage  to  the  defendant,  who  was  a  receiver  of  the 
difference-money,  to  the  plaintiff's  use. 

The  court  said  that  the  extending  those  actions  depends  on  the 
notion  of  fraud.  If  one  man  takes  another's  money  to  do  a  thing,  and 
refuses  to  do  it,  it  is  a  fraud;  and  it  is  at  the  election  of  the  party 
injured,  cither  to  affirm  the  agreement,  by  bringing  an  action  for  the 
non-performance  of  it,  or  to  disaffirm  the  agreement  ah  initio,  by 
reason  of  the  fraud,  and  bring  an  action  for  money  had  and  received 
to  his  use. 

Tl\e  d'lnirigp"  ^"^"VPrQd  in  that  case  show  the  liberality  with  which 
thiskind  of  action  is  considered;  for  though  the  defendant  received 
froni  the  plamtitf  n()Z  lUs.,  yet  the  difference-money  only,  of  £175, 
was  retained  by  him  against  conscience;  and  therefore  the  plaintiff, 
ex  cequo  et  bono,  ought  to  recover  no  more ;  agreeable  to  the  rule  of  the 
Eoman  law:  "Quod  condictio  indehiti  iion  datur  ultra,  quam  locuple- 
tior  facttis  est  qui  accepit." 

If  the  five  shares  had  been  of  much  more  value,  yet  the  plaintiff 
could  only  have  recovered  the  £262  10s.  by  this  form  of  action. 

The  notion  of  fraud  holds  much  more  strongly  in  the  present  case 
than  in  that,  for  here  it  is  express.  The  indorsement  which  enabled 
the  defendant  to  recover  was  got  by  fraud  and  falsehood  for  one  pur- 
pose, and  abused  to  another. 

This  kind  of  equitable  action  to  recover  l)aek  money  which  ought  not 
in  justice  to  bo  kept,  is  very  beneficial,  and  llierofore  much  encouraged. 
Tj^lies  nnlv  Tor  mnnny  wlnVh  or  rrqun  rl  hono.  the  defendant  ought  to 
refund :  it  does  not  lie  for  money  paid  bv  the  plaintiff,  which  is  claimed 
o f  him  as  payable  in  point  of  honor  and  honesty,  although  it  could  not 
have  ))oen  recovered  from  him  by  any  course  of  law, — as  in  paymnnt  of 
aTleht  barred  by  the  statute  of  li in rtallonsrof' contracted  during  his 
infancy,  or  to  the  extent  of  principal  and  legal  interest  upon  a 
usurious  contract,  or  for  money  fairly  lost  at  play ;  because  in  all  these 


CHAP.    I.]  MOSES  V.   MACFERLAN.  9 

cases  the  dofendant  may  retain  it  with  a  safe  conscience,  though  by 
positive  law  he  was  barred  from  recoverinfj.  But  it  lies  for  money  paid 
by  jjiistake,  or  upon  a  consideration  whicli  happens  \a  fnil^  ()Tn^^()TWTT(Tnpy 
■jot  through  imposition  (express  or  implied),  or  extortion,  or  opjjres- 
.-ion,  or  an  undue  advantage  taken  of  the  plaintiff's  situation,  contrary 
to  Taws  made  for  the  protection  of  persons  under  those  circumstances. 

Tn  onc^word,  the  aJai-tiLihis  kind  of  action  is,  that  the  deiendant, 
upon  the  circumstances  of  the  case,  is  obliged  by  the  ties  of  natural 
justice  and  equity  to  refund  the  money. 

'ineretore  we  are  all  of  us  of  opinion.  That  the  plaintiff  might  elect 
to  waive  any  demand  upon  the  foot  of  the  indemnity,  for  the  costs  he 
had  been  put  to;  and  bring  this  action  to  recover  the  £6  which  the 
defendant  got  and  kept  from  him  iniquitously. 

Rule.     That  the  postea  he  delivered  to  the  plaintiff.^ 


In  discussing  the  source  of  Lord  Mansfield's  law.  Sir  William  D. 
Evans  says,  in  the  appendix  to  Pothier  on  Obligations  (1806)  A^ol.  II. 
pp.  321-324: 

But  if  there  is  any  subject  to  which  the  doctrine  of  an  universality 
of  principle  peculiarly  applies,  it  is  that  of  reclaiming  money  unduly 
paid ;  not  only  upon  the  ground  that  there  is  no  subject  in  its  nature, 
more  wholly  referable  to  the  general  rules  of  natural  justice,  as  dis- 
tinct from  the  laws  founded  upon  local  habit  or  municipal  institution, 
but  also  upon  the  more  favourite  ground  of  precedent  itself.  It  will 
be  generally  agreed  that  the  system  of  law  upon  this  subject,  as  ad- 
ministered in  England,  is  chiefly  to  be  deduced  from  the  determina- 
tion of  Lord  Mansfield,  and  that  the  few  cases  respecting  it  of  an 
earlier  date  are  not  of  sufficient  importance  to  form  any  regular  sys- 
tem. But  Lord  ^[axsfield's  own  views  upon  the  subject  are  peculiarly 
referal)le  to  the  principles  of  universal  jurisprudence,  as  illustrated 
and  embodied  in  the  Roman  law,  and  the  whole  series  of  his  conduct 
respecting  it  is  a  continued  precedent  of  his  recurrence  to  those  prin- 
ciples. In  the  leading  case  of  Moses  r.  Macfarlane,  in  which  he 
embraced  the  earliest  opportunity  that  occurred  to  him,  of  giving  an 
exposition  of  the  grounds  and  nature  of  the  action  for  money  had 
and  received,  he  enters  diffusely  into  the  general  doctrine  respecting 

'"Altliouph  the  case  of  Moses  v.  Macferlan  is  constantly  spoken  of  to-day 
as  if  it  wore  overruled,  the  writer  knows  of  no  case  in  which  any  doctrine 
differing  from  the  decision  of  Moses  r.  Macferlan  has  been  laid  down.  Un- 
doubtedly Lord  Mansfield,  in  that  case,  u«ed  many  expressions  which  would 
not  represent  the  law  of  to-day.  but  they  were  mere  obiter  dicta,  and  should 
not  be  confused  with  the  ground  upon  wliich  Lord  ^Lvnsfielo  in  fact  rested 
the  decision  in  favor  of  the  plaintiff."'  Keener's  Treatise  on  Quasi- 
C'ontracts,  41o. 


10 


MOSES    V.    MACFERLAN. 


[book  I. 


it,  and  states  several  principles  which  have  ever  since  been  looked  up 
to  as  the  standard  of  authority  (even  by  those  who  think  that  in  the 
particular  application  of  these  principles,  he  did  not  allow  sufficient 
consequence  to  others  by  which  they  ought  properly  to  have  been 
restricted  and  controlled).  But  it  will  scarcely  be  contended  that  he 
founded  the  materials  of  his  exposition  in  any  preceding  volume  of 
Reports;  whereas  a  very  slight  comparison  will  evince  the  source  of 
it  to  have  been  tlie  judicial  wisdom  of  ancient  Rome: 


This  kind  of  equitable  action  to 
recover  money,  which  ought  not 
in  justice  to  be  kept,  is  very  bene- 
ficial, and  therefore  much  encour- 
aged. It  is  only  for  money  which, 
ex  agquo  et  bono,  the  defendant 
ouorht  to  refund. 


Hagc  condictio  ex  bono  et  aequo 
introducta,  quod  alterius  apud 
alterum  sine  causa  deprehenditur, 
revocari  consuevit.  1.  (iG.  ft'.  Lib. 
13  Tit.  6.  de  Cond.  Indeb. 


It  does  not  lie  for  money  paid 
by  the  plaintiff,  which  is  demand- 
ed of  him  as  payable  in  point  of 
honour  and  honesty,  though  it 
could  not  have  been  recovered 
from  him  by  any  course  of  law. 


Naturales  obligationes  non  eo 
solo  aestimantur,  si  actio  aliqua 
earum  nomine  competit :  verum- 
etiam  eo  si  soluta  pecunia  repeti 
non  possit.  ff.  Lib.  44.  Tit.  7  de 
Oblig.  et  Actio.  1.  10.  Lib.  46. 
Tit.  1.  de  fide  jussoribus,  1.   16. 

§  3. 

Naturaliter  etiam  servus  obli- 
gatur,  et  ideo  si  quis  ejus  nomine 
solvat,  vel  ipse  manumissus  ex 
peculio,  repeti  non  poterit.  1.  13. 
de  Condictione  Indebiti.  ff.  12. 
Tit.  6. 

Naturale  autem  debitum  in  hac 
causa  pro  vero  debito  habetur, 
eoque  etsi  exigi  non  potest ;  solu- 
tum  tamen  non  repetitur.  Vin- 
nius.  Ad.  Inst.  Lib.  3.  Tit.  28. 
4.  6. 


As  in  payment  of  a  debt,  barred 
])v  the  statute  of  limitations. 


Julianus  verum  debitorem  post 
litem  contestatem,  manente  adhuc 
judicio.  ncgabat  solventem  repe- 
tere  posse:  quia  ncc  absolutus  nee 
condenmatus  repetere  posset,  licet 
enim  absolutus  sit,  natura  tamen 
debitor  perinanet.  1.  GO.  de  Cond. 
Indeb. 


CHAP.    I.J 


MOSKS    V.    MACFERLAN. 


11 


Or  contracted   during   his   in- 
fancy. 


Hue  item  pleriquc  referunt  e.x- 
ceptionem  Senatus  Consulti  Ma- 
cedoniani ;  nam  et  filius  familias 
si  mutuam  pocuniam  aeceperit,  et 
pater  familias  peperam  solverit, 
non  repetit.  Vinnius.  Quonian, 
naturalis  obligatio  manet.  ff.  Lib. 
14.  Tit.  G.  de  Set.  Maced.  1.  9. 
10. 


It  lies  for  money  paid  by  mis- 
take. 


Quod  indebitum  per  errorem 
.soIvitur,aut  ipsuin  aut  tantumden 
repetitur,  1.  7.  de  Cond.  Indeb. 

Is  cui  quis  per  errorem  non  de- 
bitum,  solvit,  quasi  ex  contractu 
debere  videtur.  Inst.  Lib.  3.  Tit. 
28. 


Or  upon  a  consideration  which 
happens  to  fail. 


Or  for  money  got  by  imposi- 
tion, express  or  implied,  or  extor- 
tion, or  oppression. 


The  whole  title  in  the  digest, 
de  Condictioni  Causa  data, 
Causa,  non  secuta,  is  an  amplified 
view  of  this  proposition. 

Si  puis  dolo  malo  aliquem  in- 
duxerit,  aut  metu  illato  coegerit, 
ut  promitterit  non  possum  adduci 
ut  credam,  solutum  ex  his  causi^ 
retineri  posse.     Vinnius. 

Ex  ea  stipulatione,  quae  per  vim 
extorta  esset,  si  exacta  esset  pe- 
cunia,  repetitionem  esse  constat. 
ff.  Lib.  12.  Tit.  5  de  Cond.  ob 
Turp.  vel  Injust.  Caus.  1.  7. 


Or  an  undue  advantage  taken 
of  the  plaintiff's  situation,  con- 
trary to  laws  made  for  the  pro- 
tection of  persons,  under  these 
circumstances. 


Si  naturalis  obligatio  jure  civili 
improbata  sit,  aut  destituta  juris 
civilis  auxilio,  qualis  est  mulieris 
intercodontis.  1.  16.  §  1.  ad.  Set. 
Maced.  prodigi  promittentes.  1.  6. 
de  Verb.  Oblig.  pupilli  sine  tutoris 
contractu,  licet  hjBC  admittunt  ac- 
cessiones,  ea  non  attendotur  et 
perinde  repetitio  datur,  ae  si  qu(^d 
ex  causa  solutum  est  nullo  jure 
debitum  esset.     Vinnius,  22. 


12 


ADAM    SMITH. 


[book  I. 


In  one  word  the  gift  of  this  ac- 
tion is  that  the  defendant,  upon 
the  circumstances  of  the  enao,  is 
obliged  by  the  ties  of  natural 
justice  and  equity,  to  refund  the 
money. 

The  damages  recovered  in  the 
case  of  Dutch  v.  Warren,  show 
the  liberality  of  this  kind  of  ac- 
tion: for  though  the  defendant 
received  considerably  more,  yet 
the  difference  only  was  retained 
against  conscience,  and  therefore 
the  plaintiff  ex  aequo  et  bono 
could  recover  no  more, 


Hoc  natura  nequum  est  neminem 
cum  alterius  detrimento,  fieri  lo- 
cupletiorem.  1.  14.  de  Cond.  In- 
deb. 


agreeably  to  the  rule  of  the 
Koman  law :  Quod  condictio  in- 
debiti  non  datur  ultra  quam  lo- 
cupletior  est  factus  qui  accepit. 


ADAM  smith:  lectures  on  justice,  police,  revenue  and  arms. 

(1763.) 

(Part  1,  Justice,  §  10,  pp.  134,  135.) 

Quasi-contract  is  founded  on  the  duty  of  restitution.  If  you  find 
a  watch  on  the  way,  you  are  obliged  to  restore  it  by  the  right  of  prop- 
erty, because  a  man  loses  not  property  with  possession.  But  if  vou 
and  I  balance  accounts,  and  you  pay  me  a  sum  which  both  think  due, 
but  you  afterwards  find  you  did  not  owe  that  sum,  how  will  you  claim 
it ?  You  cannn[  ;i^1.-  it  n^'  ynni-  pr^^pnT-fy  f^^  y^"  ii1i"^"'at('d  tliat  sum , 
nor  can. yon  r-1niiii  it  by  pnnlriinj-.,  for  there  np.xer__was  one  made  between 
us  (nam  qui  solvendi  anlmo  pccuniam  dat,  in  hoc  dare  videtor,  ut  dis- 
frahai  potius  nngotinm  quam,  contrahat.  Inst.  lib.  Ill,  tit.  xxvii. 
^  C),  vet  it  is  evident  that  I  a.m  a  gainer  by  your  loss,  and  therefore 
restitution  is_d u e . 

In  the  same  manner,  if  a  man  was  called  away  by  a  sudden  order 
of  the  state  without  leaving  an  attorney  to  manage  a  lawsuit  that  he 
had  going  on,  and  a  friend  undertakes  this  office  without  commission, 
as  flu-  dcfcnpp  is  nocoi^snrv—mid  tlip  undertaking  it  prudent,  res^tituti on 
of  his  expenses  are  due^  On  the  same  principle  were  founded  the 
nctiones  conlranoe  of  the  Roman  law.  If  you  lent  me  a  horse  which 
had  cost  me  extraordinary  exp(^nses,  by  the  contract  commodate  you 
(ould  redemand  your  horse  in  the  same  [state]  in  which  you  lent  him. 


CHAP.    I.]  SIR   WILLIAM   D.   EVANS.  1.3 

but  I  could  claim  my  extraordinary  expenses  by  an  actio  contraria. 
The  same  principle  takes  place  in  many  other  cases.  If  a  person 
borrows  money,,  and  gets  three  of  his  acquaintances  sureties  for  him, 
jointly  and  severally,  and  if  he  turn  l)ankrui)t,  the  creditor  pursues  the 
ablest  surety,  who  has  a  claim  by  the  duty  of  restitution  on  the  other 
two  for  their  thirds.  The  Scotch  law  carries  this  still  farther.  If  a 
bankrupt  had  two  estates,  and  two  creditors,  A  and  B :  A  has  a  security 
on  both  estates,  B  has  security  only  on  the  best:  A  has  a  liljerty  of 
drawing  his  money  from  either  estate  he  pleases,  and  draws  from  that 
on  which  B  has  his  security.  As  B  in  this  case  is  cut  out,  the  law  obliges 
A  to  give  up  his  security  on  the  other  estate  to  B.  The  same  was  the 
case  in  the  Roman  law  with  regard  to  tutory.^ 


SIR  WILLIAM  D.  EVANS  :  AN  ESSAY  ON  THE  ACTION  FOR  MONEY  HAD  AND 
RECEIVED. — INTRODUCTION    (  1802)  . 

If  one  person  receives  a  sum  of  money  for  the  purpose  of  paying  it 
over  to  another,  his  obligation  to  make  such  payment  is  too  plain  to 
require  any  comment.  The  general  o1)ligation  to  refund  money,  which 
has  been  paid  under  a  nnstake,  or  obtained  by  fraud  or  extortion, 
or  ^iven  for  a  purpose  to  which  it  has  not  been  applied,  is  equally 
evident.  According,  to  the  Roman  law,  actions  of  different  denomt- 
nations  were  adapted  to  the  several  cases,  in  which  such  payment  was 
unduly  made.  T])p_JRng]ish  law  has  adopted  a  gencraLaiipjJOsition, 
that  the  monev  which  ought  to  be  refunded  was  received  for  the  use 
of  the  party  bv  whom  it  was  paid,  and  that  the  person  receiving  it  made 
a  jjromise  to  pay  it  on  request.  And  the  action  used  for  this  purpose 
is  called  an  action  for  money  had  and  received.  This  action  has 
also  an  extensive  latitude  as  a  mode  of  trying  adverse  rights;  for  if 
a  person  sells  my  property  under  a  claim  of  title  or  otherwise,  I  may 
in  point  of  form  consider  him  as  my  agent  and  charge  him  with  having 
received  the  money  for  my  use  and  made  a  promise  to  pay.  I  have  no 
intention  at  present  of  examining  the  different  cases  in  which  this  is 

'Tile  lectures  from  which  the  above  excerpt  is  printed,  were  delivered  by 
Adam  Smitli  to  his  classes  in  the  University  of  Glasjjow  and  reported  by  a 
student  in  17G3.  (See  the  valuable  introduction  of  the  editor,  Jlr.  Edwin 
Cannan,  in  which  he  recounts  the  discovery  in  1895  of  these  interesting  and 
exceedingly  valuable  lectures.) 

It  may  be  of  interest  to  note  that.  ;,t  the  very  time  Adam  Smith  was 
discoursing  theoretically  on  Quasi-Contract  to  his  classes  in  Glasgow,  hia 
fellow  Scot — the  great  I.,ord  Mansfield — like  him  deeply  read  and  learned  in  the 
Roman  Law,  was  making  the  law  of  (>uasi-Contract  from  the  bench.  See 
Moses  V.  Macferlan  (17liO)  1  Wm.  Blackstone,  219  and  2  Burrow,  1005 
ante. — Ed. 


]4  SIi;    WILLI A.M   I).    EVANS.  [BOOK    I. 

the  proper  form  of  action,  where  it  is  agreed  that  a  right  of  action  in 
some  shape  certainly  exists.  1  shall  only  observe,  that  the  extension 
of  it  has  of  late  years  been  considerably  favoured,  and  a  party  may 
now  obtain  redress  upon  this  general  allegation,  in  many  cases  where 
it  was  formerly  deemed  necessary  to  make  a  particular  and  circum- 
stantial statement  of  his  demand,  whereby  the  danger  of  failing  from 
an  error  in  the  statement  was  considerably  increased :  and  in  the  cases 
where  a  person  has  his  election  to  bring  his  action,  as  for  a  wrong, 
or^^^aiving  the  injury,  to  consider  the  conversion  of  his  propcrty_as 
ail  agency,  and  an  obligat_ion_to_account,  he  must  act  consistently 
tHroughout,  and  not  treat  the  same  act  as  licit  for  one  purpose,  an3~ 
tortious  for  another.  If  I  charge  a  man  with  converting  my  corn  or 
timber  to  his  own  use,  and  sue  him  for  damages,  it  will  be  no  justifica- 
tion that  I  owe  him  a  sum  of  money;  but  if  I  proceed  against  him  in 
an  action  for  money  had  and  received,  in  order  to  recover  the  produce, 
he  may  set  off  his  debt,  and  I  cannot  oppose  the  argument  that  his 
being  my  creditor  does  not  warrant  his  taking  and  disposing  of  my 
property.  Where  death  or  bankruptcy  has  taken  place,  the  choice 
between  these  two  remedies  is  often  very  important. 

The  present  essay  will  be  chiefly  confined  to  the  action  for  money 
had  and  received,  as  enforcing  an  obligation  to  refund  money  which 
ought  not  to  be  retained.  The  Roman  system  of  jurisprudence  ranked 
this  as  a  Quasi  contract,  being  an  intermediate  order  between  contracts 
properly  so  called,  which  were  founded  upon  actual  consent,  and  wilful 
wrongs.  And  without  particularising  their  technical  distinctions,  I 
shall,  in  referring  to  that  law,  in  general  consider  the  term  Solutio 
indebili,  as  comprising  the  general  distinctions  arising  from  a  liability 
to  refund. 

This  obligation  was  enforced  according  to  the  general  principles 
of  natural  equity,  the  foundation  of  it  being  a  retention  by  one  man 
of  the  property  which  he  had  unduly  received  from  another,  or  received 
for  a  purpose,  the  failure  of  which  rendered  it  improper  that  he  should 
retain  it.  The  mere  legal  liability  to  the  original  payment  was  not 
the  question  in  consideration,  but  the  injustice  of  permitting  the  money 
or  other  property,  under  all  the  circumstances,  to  be  retained.  The 
introfluction  of  the  action  for  money  had  and  received  into  the  English 
courts,  is  not  novel,  and  several  cases  had  occurred  previous  to  the 
appointment  of  Lord  Mansfield,  in  which  it  had  been  properly 
af)pli(Hl,  so  that  it  was  familiar  in  point  of  practice.  But  it  was 
reserved  to  that  eminent  judge  to  trace  the  nature  and  principles 
of  the  action,  with  a  most  instructive  perspicuity,  and  to  direct  the 
general  application  of  it  in  its  proper  channel. 

In  some  instances  the  particular  decisions  may  be  reasonably  ques- 
tioned, but  the  utility  resulting  from  his  general  discussions  must  be 
universally  allowed.  In  the  case  of  Moses  v.  Macferlan,  2  Burr.  1005, 
which  gave  him  the  first  opportunity  of  expressing  his  opinion,  upon 


CHAP.    1.]  SIR   WILLIAM   D.   EVANS.  15 

this  ground  of  action,  he  very  compendiously  stated  the  nature  and 
principles  of  it,  coinciding  in  effect  with  tlie  institutes  of  the  civil 
law.  The  following  extract  from  his  opinion,  will  furnish  a  proper 
introduction  to  a  more  minute  examination  of  the  subject:  "This 
kind  of  equitable  action  to  recover  money,  which  ought  not  in  Justice 
to  be  kept,  is  very  beneficial,  and  therefore  much  encouraged.  It  lies 
only  for  money,  which  ex  cequo  et  bono,  the  defendant  ought  to  refund, 
it  does  not  lie  for  money  paid  by  the  plaintiff,  which  is  claimed  of  him 
as  payable  in  point  of  honour  and  honesty,  although  it  could  not  have 
been  recovered  from  him  by  any  course  of  law;  as  in  payment  of  a 
debt  barred  by  the  statute  of  limitations,  or  contracted  during  his 
infancy,  or  to  the  extent  of  principal  and  legal  interest  upon  an 
usurious  contract,  or  for  money  fairly  lost  at  play :  because  in  all  these 
cases  the  defendant  may  retain  it  with  a  safe  conscience,  though  by 
positive  law  he  was  barred  from  recovering.  But  it  lies  for  money  paid 
by  mistake ;  or  upon  a  consideration  which  happens  to  fail ;  or  for 
money  got  by  imposition  (express  or  implied),  or  extortion  or  oppres- 
sion ;  or  an  undue  advantage  taken  of  the  plaintiff's  situation,  con- 
trary to  laws  made  for  the  protection  of  persons  under  these  circum- 
stances. In  one  word,  the  gist  of  this  kind  of  action  is,  that  the 
defendant,  upon  the  circumstances  of  the  case,  is  obliged  by  the  ties  of 
natural  justice  and  equity,  to  refund  the  money." 

The  maxim  of  the  civil  law,  that  it  is  naturally  just  that  one  man 
shall  not  be  enriched  to  the  detriment  of  another,  floe  natura  csquiim 
est,  neminem  cum  alterius  detrimento  fieri  lociipletiorem,  is  particu- 
larly applied  to  the  claim  which  we  are  at  present  examining. 

The  Commentary  of  Vinnius  upon  the  title  in  the  institutes,  De 
sohitioiie  indehiti.  contains  a  very  instructive  view  of  the  subject.  His 
general  exposition  of  it,  which  agrees  in  substance  with  the  preceding 
observations  of  Lord  Mansfield,  is  as  follows:  "In  order  to  induce 
an  obligation  in  favour  of  the  person  paying,  and  a  right  to  reclaim 
what  has  been  paid,  two  things  are  required.  That  what  is  paid 
should  not  be  due;  that  it  should  be  paid  through  error.  In  respect  of 
the  first;  there  is  no  repetition  of  what  is  really  due:  and  nobody 
can  suppose  that  there  is  a  right  of  repetition  if  what  was  paid  was 
due  both  in  point  of  law  and  of  natural  justice.  But  supposing  it  only 
due  according  to  one  of  these:  if  it  is  only  by  strictness  of  law,  without 
any  obligation  in  point  of  equity,  and  could  be  repelled  by  a  perpetual 
exception,  the  right  of  repetition  is  allowed :  as  such  a  sum  cannot 
be  said  to  be  due  except  in  name.  But  what  is  due  according  to  natural 
justice  is  considered  as  being  r(>allv  due;  and  although  the  pavment  of 
it  could  not  be  enforced,  yet  if  it  is  aotuallv  paid,  tboiigli  by  a  person 
who  supposes  himself  to  l>e  liable  in  point  of  Inw.  it  cannot  be 
reclaimed.  If  a  debtor  has  a  perpetual  excejition,  but  wliich  is  foimdeil 
upon  some  reason  that  does  not  remove  his  natural  oblisjation.  and 
not  l)eing  apprized  of  it,  pays  the  debt,  he  has  no  claim  to  repetition. 


IG  JOHN   AUSTIN.  [book    I. 

Such  is  the  exception  of  a  judgment  in  his  favour,  as  the  sentence 
of  the  judge  cannot  destroy  the  obligation  founded  on  the  consent 
of  the  party,  and  therefore  it  was  decided,  tliat  a  person  really 
indebted,  but  liberated  by  a  judgment  in  his  favour,  could  not  insist 
upon  a  rei)etition.  Also,  if  a  person  under  the  power  of  his  father, 
borrowed  money,  from  the  payment  of  which  he  was  protected  by  the 
Senatus  consultum  Macedonianum,  and  after  he  became  his  own 
master  {pater  familias)  paid  the  money,  he  was  bound,  as  there  was 
a  natural  obligation  subsisting.^ 


JOHN  AUSTIN:  LECTURES  ON  JURISPRUDENCE    (1833), 

(3d  ed.,  p.  944.) 

Strictly,  Quasi-Contracts  are  acts  done  by  one  man  to  his  own 
inconvenience  for  the  advantage  of  another,  but  without  the  authority 
of  the  other,  and,  consequently,  without  any  promise  on  the  part  of 
the  other  to  indemnify  him  or  reward  him  for  his  trouble. 

Instances :  Negotiorum  gestio,  in  the  Eoman  law ;  Salvage,  in  the 
English. 

An  obligation  arises,  such  as  would  have  arisen  had  the  one  party 
contracted  to  do  the  act,  and  the  other  to  indemnify  or  reward.  Hence 
the  incident  is  called  a  "quasi-contract;"  i.e.,  an  incident,  in  conse- 
quence of  which  one  person  is  obliged  to  another,  as  if  a  contract  had 
been  made  between  them. 

The  basis  is,  to  incite  to  certain  useful  actions.  If  the  principle  were 
not  admitted  at  all,  such  actions  would  not  be  performed  so  often  as 
they  are.  If  pushed  to  a  certain  extent,  it  would  lead  to  inconvenient 
and  impertinent  intermeddling,  with  the  view  of  catching  reward. 
Whether  it  shall  be  admitted,  or  not,  depends  upon  the  nature  of  the 

'Inasmuch  as  this  Essay  is  an  early,  if  not  the  first,  conscious  and  systematic 
treatment  in  English  of  the  Law  of  Quasi-Contract,  Evans'  classification  may 
be  of  interest. 

Contents. — Introduction — Chap.  I.  Of  Money  paid  by  Mistake:  Sec.  I.  Mis- 
takes of  Law;  Sec.  II.  Mistakes  of  Fact — Chap.  II.  Money  paid  on  a  consider- 
ation which  has  failed:  Sec.  I.  Failure  by  Misconduct  of  the  Defendant;  Sec. 
II.  Failure  by  change  of  Intention  in  the  Plaintiff;  Sec.  III.  A  Failure  from 
Accidental  Circumstances — Chap.  III.  Money  paid  through  imposition  or  ex- 
tortion— Chap.  IV.  Money  paid  on  Illegal  Contracts :  Sec.  I.  Contracts  attended 
with  Criminality,  Turpitude,  or  Oppression;  Sec.  II.  Contracts  which  are  Void, 
but  not  Criminal  (Part  I.  Void  Insurances,  Part  II.  Wagers,  Part  III.  Annu- 
ities)— Chap.  V.  Cases  in  which  the  Action  is  not  maintainable:  Sec.  I.  Mis- 
cellaneous Cases;  Sec.  II.  Compromise — Chap.  VI.  The  Effects  of  Judicial  Pro- 
ceedings— Chap.  VII.  By  what  Persons  the  Action  may  be  maintained — Chap. 
VIII.  Against  what  Persons  the  Action  may  be  maintained — Chap.  IX.  The 
Damages. — Ed. 


CHAP.    I.]  SIR   IIEXUY    SUMNER    MAINE.  17 

act — i.e.,  its  general  nature;  since,  without  a  general  rule,  the  induce- 
ment would  not  operate,  nor  would  the  limitation  to  the  principle  be 
understood.  Acts  which  come  not  within  the  rule,  however  useful  in 
the  particular  instance,  must  be  left  to  benevolence  incited  by  the  other 
sanctions. 

But  quasi-contract  seems  to  have  a  larger  import, — denoting  any 
incident  by  which  one  party  obtains  an  advantage  he  ought  not  to 
retain,  because  the  retention  would  damage  another;  or  by  reason 
of  which  he  ought  to  indemnify  the  other.  The  prominent  idea  in 
(juasi-contract  seems  to  be  an  undue  advantage  which  would  ])e  ac(juired 
by  the  obligor,  if  he  were  not  compelled  to  relinquish  it  or  to  indemnify. 


SIR  HENRY  SUMNER  MAINE:  ANCIENT  LAW    (18G1). 

(4th  ed.,  pp.  343-344.) 

The  part  of  Eoman  law  which  has  had  most  extensive  influence  on 
foreign  subjects  of  inquiry  has  been  the  law  of  Obligation,  or,  what 
comes  nearly  to  the  same  thing,  of  Contract  and  Delict.  The  Romans 
themselves  were  not  unaware  of  the  offices  wliich  the  copious  and 
malleable  terminology  belonging  to  this  part  of  their  system  might 
be  made  to  discharge,  and  this  is  proved  by  their  employment  of  the 
peculiar  adjunct  quasi  in  such  expressions  as  Quasi-Contract  and 
(^uasi-Delict.  "Quasi,"  so  used,  is  exclusively  a  term  of  classification. 
It  has  been  usual  with  English  critics  to  identify  the  quasi-contracts 
with  implied  contracts,  but  this  is  an  error;  for  implied  contracts  are 
true  contracts,  which  quasi-contracts  are  not.  In  implied  contracts, 
acts  and  circumstances  are  the  symbols  of  the  same  ingredients  which 
are  symbolized,  in  express  contracts,  by  words;  and  whether  a  man 
employs  one  set  of  symbols  or  the  other  must  be  a  matter  of  indiffer- 
ence so  far  as  concerns  the  theory  of  agreement.  But  a  quasi-contract 
is  not  a  contract  at  all.  The  commonest  sample  of  the  class  is  the 
relation  subsisting  between  two  persons,  one  of  whom  has  paid  money 
to  the  other  through  mistake.  The  law,  consulting  the  interests  of 
morality,  imposes  an  obligation  on  the  receiver  to  refund,  but  the 
very  nature  of  the  transaction  indicates  that  it  is  not  a  contract,  inas- 
much as  the  Convention,  the  most  essential  ingredient  of  Contract,  is 
wanting.  This  word  "quasi,"  prefixed  to  a  term  of  Eonian  law.  implies 
that  the  conception  to  which  it  serves  as  an  index  is  connected  with 
the  conception  with  which  the  comparison  is  instituted  by  a  strong 
superficial  analogy  or  resemblance.  It  does  not  denote  that  the  two 
conceptions  are  the  same,  or  that  they  belong  to  the  same  gonus.  On 
the  contrary,  it  negatives  the  notion  of  an  identity  between  them ;  but 
it  points  out  that  they  are  sufficiently  similar  for  one  to  be  classed 
as  the  sequel  to  the  other,  and  that  the  phraseology'  taken  from  one 


]8  JAMES  BAKR  AMES.  [BOOK    I. 

department  of  law  may  be  transferred  to  the  other,  and  employed 
without  violent  straining,  in  the  statement  of  rules  which  would  other- 
wise be  imperfectly  expressed. 


JAMES  BARR  AMES:  THE  HISTORY  OF  ASSUMPSIT   (1888). 

(3  Harvard  Law  Eeview,  pp.  63-64.) 

It  remains  to  consider  the  development  of  Indebitatus  Assumpsit 
as  a  remedy  upon  quasi-contracts,  or,  as  they  have  been  commonly 
called,  contracts  implied  in  law.  The  contract  implied  in  fact,  as  we 
have  seen,  is  a  true  contract.  But  the  obligation  created  by  law  is  no 
contract  at  all.  Xeither  mutual  assent  nor  consideration  is  essential 
to  its  validity.  It  is  enforced  regardless  of  the  intention  of  the  obligor. 
It  resembles  the  true  contract,  however,  in  one  important  particular. 
The  duty  of  the  obligor  is  a  positive  one,  that  is,  to  act.  In  this  respect 
they  both  differ  from  obligations,  the  breach  of  which  constitutes  a 
tort,  where  the  duty  is  negative,  that  is,  to  forbear.  Inasmuch  as  it 
has  been  customary  to  regard  all  obligations  as  arising  either  ex  con- 
tractu or  ex  delicto,  it  is  readily  seen  why  obligations  created  by  law 
should  have  been  treated  as  contracts.  These  constructive  duties  are 
more  aptly  defined  in  the  Roman  law  as  obligations  quasi  ex  contractu 
than  by  our  ambiguous  "iuii)lie(l  contracts."  (In  Finch,  Law,  150, 
they  are  called  "as  it  were"  contracts.)  Quasi-contracts  are  founded 
(1)  upon  a  record,  (2)  upon  a  statutory,  official,  or  customary  duty, 
or  (3)  upon  the  fundamental  principle  of  justice  that  no  one  ought 
unjustly  to  enrich  himself  at  the  expense  of  another.  [(4)  In  Roman 
law,  there  were  certain  cases  of  ncgotiorum  f/Cillo  where  defendant 
w^as  liable,  althoiigh  there  was  no  enrichment.  There  is  nothing  corre- 
sponding in  English  law,  or,  rather,  there  are  only  a  few  cases.^] 

'From  a  manii-^cript  note  by  Mr.  Ames. 

The  above  statement  of  the  origin  and  sources  of  Quasi- Contracts  (adopted 
by  Judge  Keener  in  his  Treatise  on  Quasi-Contracts)  was  judicially  con- 
sidered, approved  and  adopted  in  Ingram  v.  U.  S.  (1S97)  32  Court  of  Claiin.s, 
147,  107-108,  per  Xott,  C.  J. 

And  see  an  article  on  the  Law  of  Quasi-Contracts  by  the  late  Professor 
Wald  in  14  Law  Quarterly  Review,  2r).'J-2.)0. 

The  provisions  <<i  tlic  modern  Roman  Law  on  the  subject  of  Quasi-Contraets 
will  be  found  in  the  fnllnwing  references:  2  U'indscheid's  Pandektenrecbt, 
§§  421  ct  scq.;  French  Code  Civil  (Dalloz)  Arts.  l:{70-138]  ;  Baudry-Lacant- 
inerie  &  Barde's  Trait*'  de  Droit  Civil :  Des  Obligations  (3d  part)  pp.  1037-1077  ; 
Italian  Civil  Code  (French  translation  by  Prudbomme)  Arts.  1140-1  l.'iO 
(annotated  with  references  to  various  Kuropean  and  Spanish-.'\merican  code.«i 
and  laws);  Spanish  Civil  Code  (Falcon)  Arts.  1887-15)10  (annotated  with 
references  to  European  and  American  codes  and  laws)  ;  Civil  Code  of  Louis- 
iana, Arts.  2271-2203:  2  TIennen's  Louisiana  Digest.  1282-1286;  Louque'a 
Digest,  603-605;  Taylor's  Digest,  698-690;  Breaux's  Digest,  856-857.— Ed. 


CHAPTER    II. 

Extent  of  the  Obligation. 


SECTION    I. 
Obligation  Arises  from  a  Record. 


DUPLEIX  V.  DE  ROVEN. 

High  Court  of  Chancery,  1705. 

[2  Vernon,  540.] 

Plaintiff  and  defendants  intestate  were  merchants  at  Lyons  in 
France.  The  plaintiff  recovered  a  judfrment,  or  sentence  there,  against 
the  intestate;  and  afterwards  the  intestate  failing,  compounded  for  a 
lessor  sum,  for  which  in  1676,  he  gave  a  note,  as  for  so  much  due  upon 
an  account  stated ;  but  before  any  payment  or  satisfaction,  the  intestate 
ilcd  out  of  France,  and  at  the  Indies  acquired  a  considerable  estate; 
;ind  about  four  years  before  the  bill  exhibited  died  intestate.  The 
defendant  took  administration  to  him,  and  lately  had  considerable 
effects  come  to  his  hands.  The  bill  was  for  a  discovery  of  assets,  and 
satisfaction  of  the  plaintiff's  debt. 

The  defendant  pleaded  the  statute  of  limitations. 

Per  Lord  Keeper  [Coirperl.  Although  the  plaintiff  obtained  a  jud":.- 
iiient  or  sentence  in  France,  yet_here_lhe  debt  niust  be_.CQiisidercd_as 
a  debt  by  simple  contract  The  plaintiff  can  maintain  no  action  here, 
but  an  itidebitatus  nssumpsif.  or  an  iiif^imul  romputasset,  d-c.  so 
that  the  statute  of  limitations  is  pleadable  in  this  case;  and  although 
Imth  parties  were  foreigners,  and  resided  beyond  sea,  that  will  not  help 
ihe  plaintiff.  The  statute  provides  where  the  party  plaintiff,  he  who 
carries  the  action  about  with  him,  goes  beyond  sea ;  his  right  shall  be 
saved  (Statute  21  Jar.  1,  cap.  16,  sect.  7)  ;  but  when  the  debtor  or 
party  defendant  goes  beyond  sea;  there  is  no  saving  in  that  case  (sed 
vide  4  Anne,  cap.  16,  sec.  19,  by  which  the  right  is  saved  in  that  ease 
also,  et  vide  as  to  the  general  force  of  judgments  in  foreign  courts. 
Xewland  v.  Horseman,  ante.  1  vol.  p.  21.  and  case^  cited  in  note  there). 
It  is  plausible  and  reasonable,  that  the  statute  of  limitations  should  not 
take  place,  nor  th(^  s/.r  years  be  running,  until  th(>  parties  come  within 
the  cognizance  of  the  laws  of  Eiujhtul:  but  that  must  be  left  to  the 


20  WILLIAMS  V.  JONES.  [BOOK    I. 

legislature.     The  plea  allowed,  and  again  on  a  rehearing,  Reg.  Lib. 
1705,  A.  fol.  232). 1 


WILLIAMS  V.  JONES. 

Court  of  Exchequer,  1845. 

[13  Meeson  and  Welshij,  638.] 

Debt  on  adjudgment  of  the  county  court  of  Carnarvonshire.  To 
the  declaration  there  was  interposed  a  special  demurrer,  assigning  for 
causes  (inter  alia)  thjrHri  law  no  aptimi  1ie&jiponjthe4udgment  of  jin 
inferior  court  not  of  record ;  and  that  it  is  not  stated  in  the  declara- 
tion that  tlie  defendant  was  a  resident  within  the  said  county  of  Carnar- 
von, or  within  the  jurisdiction  of  the  said  court,  or  that  he  had  been 
duly  summoned  to  the  said  court.    Joinder  in  demurrer.^ 

Parke,  B. — The  principle  on  which  this  action  is  founded  is,  that, 
where  a  court  of  competent  jurisdiction  has  adjudicated  a  certain  sum 
to  be  due  frbnToiie  person  to  another,  alegal  obligation  arises  to  pay 
that  sum,  on_which  an  action  of  debt  to  enforce  the  judgment  may  be 
maintained.  It  is  in  this  way  that  jhe  judgments  qfforeign  and 
colonial  co]jLrtsjare~supporfed  a_nd^ejiforced,  and  the  same  rulc~app!res 
to  inferior  j;ourts  in  this  country,  and  applies  equally  whether  they  be 
courts  of  record  or  not.  That  the  present  objection  has  not  been  taken 
in  similar  cases  heretofore  may  not  be  a  very  strong  argument,  and  yet 
is  entitled  to  considerable  weight,  when  it  is  considered  how  obvious 
the  objection  is.  These  observations  apply  to  the  nature  of  the  remedy 
generally,  and  not  to  the  mode  of  enforcing  it. 

Alderson,  B. — I  am  of  the  same  opinion.    The  principle,  that  an 

'Xotwithstandinp  Chief  Justice  Holt's  protest,  in  York  v.  Toun,  5  Mod. 
444,  aj^ainst  the  extension  of  indebitatus  assiimpsit,  "The  new  action,"  says 
Mr.  Ames,  "continued  to  be  encourajired.  Assumpsit  was  allowed  upon  a  for- 
eign judgment  in  1705,  Dupleix  v.  De  Roven,  2  Vern.  540,  and  the  'meta- 
physical notion'  of  a  promise  (Starke  v.  Cheeseman,  1  Ld.  Eay,  5.38)  implied 
in  law  become  fixed  in  our  law."  The  History  of  Assumpsit,  2  Harv.  Law 
Rev.  GO. 

"A  judgment  of  a  court  of  a  sister  state  is  entitled  under  the  Constitu- 
tion  and  Laws  of  the  United  States  to  all  the  dignity  of  a  record  in  respect 
to  matters  of  pleading  and  evidence.     Consequently  an   action   of  assumpsit 


wjll_jiofjieiipoirsifcT7  a  judgment.  The  declaration  must  be  in  debt,  counting 
upon  the  judgments  as  a  record.  A  certain  early  case  advanced  the  opinion 
that  the  action  Irnight  be  either  debt  or  assumpsit,  but  could  not  be  case.  But 
it  must  be  perfectly  apparent  that  the  only  proper  form  is  debt."  Black  on 
Judgments,  §  873,  and  cases  cited. — Ed. 

"The  statement  of  the  ease  is  shortened.  Lord  Chief  Baron  Pollock's 
opinion  is  omitted,  and  only  that  part  of  the  opinions  of  Barons  Parke  and 
Alderson  is  given  which  relates  to  the  nature  of  the  obligation. — Ed. 


ClIAl'.    II.]  GRANT    V.    EASTOX.  21 

action  of  debt  may  be  brought  upon  a  judgment  of  an  inferior  court, 
applies  equally  to  courts  of  record  and  not  of  record,  and  cannot  be 
limited  by  the  consideration,  that,  in  the  case  of  a  judgment  of  a  court 
not  of  record,  you  are  thereby  giving  a  more  extensive  remedy  against 
the  defendant,  because  that  would  apply  to  both  descriptions  of  judg- 
ments. There  is  no  foundation  for  a  distinction  between  the  cases, 
'['he  true  principle  is,  that  where  a  court  of  c(>iii])etent  jurisdiction 
adjudges  a  sum  of  money  to  be  paid,  an  obligation  to  pay  it  is  created 
thereby,  and  an  action  of  debt  may  therefore  be  brought  upon  such 
judgment^  This  is  the  principle  on  which  actions  on  foreign  judg- 
ments are  supported. 


GRANT  V.  EASTON. 

Court  of  Appeal,  1883. 

[Law  Reports,  13  Queen's  Bench  Division,  302.] 

The  plaintiff,  who  resided  in  Egypt,  had  obtained  against  the 
defendant  a  judgment  dated  the  2nd  of  July,  1883,  in  Her  Britannic 
Majesty's  Vice-Consular  Court  at  Cairo.  The  defendant  resided  in 
England.  The  plaintiff  then  commenced  in  the  High  Court  of  Justice 
an  action  founded  upon  the  judgment  obtained  in  the  Vice-Consular 
Court  at  Cairo,  and  an  order  was  made  at  chambers  by  a  master,  em- 
powering the  plaintiff  to  enter  judgment  summarily.  This  order  was 
affirmed  on  appeal  by  the  judge  sitting  at  chambers,  and  afterwards  by 
the  Queen's  Bench  Division.  The  defendant  then  appealed  to  this 
Court. 

Brett,  M.R.  [After  citing  Hodsoll  v.  Baxter,  E.  B.  &  E.  884.]— 
But  if  no  authority  had  existed,  I  should  have  come  to  the  same  con- 
clusion. An  action  on  a  judgment  has  been  treated  as  an  action  of 
debt.  It  has  been  suggested,  however,  that  a  difference  exists  between 
English  and  foreign  judgments,  but  in  the  present  case  the  question 
is,  whether  the  defendant  can  shew  any  defence  to  the  claim  made 
against  him.  Upon  principle  what  difference  can  there  be  between  an 
English  and  a  foreign  judgment  in  this  respect?  Ar;  notion  iipon  a 
foreign  judgment  may  be  treated  as  an  action  in  either  debt  or  assuinp- 
sit :  the  liability  of  the  defenTIant  arises  upon_the_iinplied  contract-to- 
pay  the~aniounf  of  the  foreign  judgment.^ 
^AGGALLAY  and  BoWENTTTJXTconcurred. 

.1  ppeal  dism  issed. 

Terliaps  the  clearest  statement  of  the  nature  of  a  jiuljnnent  to  be  found 
in  the  English  reports  is  in  the  case  of  Ridleson  v.  Whytel  (1764)  3  Burr. 
1545,  1548  (apparently  overruling  T?id(lolph  r.  Semple  (1009)  1  Lev.  260), 
in  which  Lord  M.xxsfield,  speaking  for  all  the  judges,  said  "that  a  judg- 


22  PEERCE  V.    KITZMILLER.  [boOK  I. 


PEERCE  V.  KITZMILLER. 

Supreme  Court  of  Appeals  of  West  Virginia,  1882. 

[19  West    Virginin  Reports,  oGl.] 

One  Kitzmiller  brought  an  action  of  trespass  against  one  Peerce 
for  damages  sustained  by  the  fact  tliat  Peerce  had,  during  the  civil 
war,  taken  and  carried  away  certain  cattle  belonging  to  Kitzmiller, 
and  in  an  action  Kitzmiller  recovered  judgment  in  1809  for  $410. 

In  1873,  Peerce  presented  a  petition  to  the  court,  in  which  judg- 
ment was  had,  setting  forth  that  petitioner  is  a  citizen  of  the  state  of 
West  Virginia ;  that  he  aided  and  participated  in  the  late  war  between 
the  Government  of  the  United  States  and  a  part  of  the  people  thereof, 
and  that  the  said  judgment  was  recovered  against  the  petitioner  for 
an  act  done  by  him  according  to  the  usages  of  civilized  warfare  in  the 
prosecution  of  the  said  war.  The  prayer  of  the  petition  was  that  the 
judgment  rendered  might  be  set  aside  and  a  new  trial  awarded.  The 
])rayer  was  'based  upon  section  35,  article  VIII  of  the  Constitution 
of  West  Virginia,  adopted  Aug.  22,  1872,  which  reads  as  follows:  "No 
citizen  of  this  state  who  aided  or  participated  in  the  late  war  between 
the  Government  of  the  United  States  and  a  part  of  the  people  thereof 
on  either  side,  shall  be  liable  in  any  proceeding,  civil  or  criminal;  nor 
shall  his  property  be  seized  or  sold  under  final  process  issued  upon 
judgments  or  decrees  heretofore  rendered  or  otherwise  because  of  any 
act  done  according  to  the  usages  of  civilized  warfare  in  the  prosecution 
of  said  war  by  either  of  the  parties  thereto." 

The  court  found  that  the  cause  of  action  was  based  upon  a  tort 
committed  according  to  the  usages  of  civiMzed  warfare  during  the 
civil  Avar;  set  aside  the  judgment  and  awarded  a  new  trial.  To  this 
order  of  the  court  Kitzmiller  duly  excepted,  and  a  writ  of  error  was 
allowed.^ 

mont  is  no  contract,  nor  can  be  considered  in  the  lipht  of  a  contract:  for 
jinliciiim  redditvr  in  invitum."  And  see  the  admirable  case  of  Jordan  v. 
Robinson  (18.38)   15  Me.  167. 

"According  to  the  rule  now  prevailing  in  England  and  the  United  States,  an 
action  upon  a  foreign  judgment  may  be  brought  either  in  debt  or  assumpsit, 
the  liability  of  the  defendant  arising  upon  the  implied  contract  to  pay  the 
amount  of  the  foreign  judgment.  In  Canada,  however,  the  courts  hold  that 
assumpsit  only,  and  not  debt,  is  the  proper  form  for  an  action  on  a  judgment 
recovered  abroad."     Black  on  Judgments,  §  848,  and  cases  cited. 

As  to  the  nature  of  jndgnipnts,  domestic  as  well  as  foreign,  and  the  re- 
sper-tive  means  of  enforcing  them,  see  the  elaborate  opinion  of  Mr.  Justice 
Orav  in  TTilton  v.  Ouyot  (1804)   1.59  U.  S.  113.— En. 

'.\  short  stntement  of  facts  of  the  case  is  substituted  and  only  a  part  of 
the  opinion  of  the  learned  judge  is  printed. — Ed. 


ClIAl'.    II.]  PEEUCE  V.  KITZMILLER.  23 

JojiNsoN,  President,  announced  the  opinion  of  the  Court:  So 
tlie  only  enquiry  we  have  to  make  as  to  the  validity  of  the  consti- 
tutional provision  we  are  considering  is:  Does  it  violate  the  obligation 
of  a  contract,  and  if  not,  does  it  deprive  anij  person  of  property  witJiout 
due  process  of  law?     Is  a  judj^nient  founded  upon  a  tort  a  contract? 

In  Fletcher  v.  Peck,  6  Cranch,  137  supra,  Marshall,  Chief  Justice, 
defines  a  contract  to  be  a  "compact  between  two  or  more  parties."  In 
Charles  River  Brid^a'  v.  Warren  Bridge,  11  Pet.  420,  Mr.  Justice 
Mi'Lka.n  in  his  opinion,  572,  said:  "What  was  the  evil  against  which 
the  Constitution  intended  to  provide  by  declaring  that  no  State  shall 
j)ass  any  law  impairing  the  obligation  of  contracts  ?  What  is  a  contract 
and  what  is  the  obligation  of  a  contract?  A  contract  is  defined  to  be  an 
agreement  between  two  or  more  persons  to  do  or  not  to  do  a  particular 
thing.  The  obligation  of  a  contract  is  found  in  the  terms  of  the 
agreement  sanctioned  by  moral  and  legal  principles.  The  evil,  which 
the  inhibition  on  the  States  was  intended  to  prevent,  is  found  in  the 
history  of  our  revolution.  By  repeated  acts  of  legislation  in  differ- 
ent States  during  that  eventful  period  the  obligation  of  contracts  was 
impaired.  The  time  and  mode  of  payment  were  altered  by  law ;  and 
so  far  was  this  interference  of  legislation  carried,  that  confidence 
between  man  and  man  was  well  nigh  destroyed." 

In  Baltimore  &  Susquehanna  R.  R.  Co.  v.  Xesbitt  et  al.,  10  How. 
at  page  398,  Mr.  Justice  Daxiel,  in  delivering  the  opinion  of  the 
Court,  said :  "It  must  be  certainly  shown,  that  there  was  a  perfect 
investment  of  property  in  the  plaintiff  in  error  by  contract  with  the 
legislature  and  a  subsequent  arbitrary  devestiture  of  that  property  by 
the  latter  body,  in  order  to  constitute  their  proceeding  an  act  impairing 
the  obligation  of  a  contract." 

In  Sturges  v.  Crowningshield,  4  Wheat.  Chief  Justice  Makshall,  at 
page  197,  in  speaking  of  the  meaning  of  the  Constitution  of  the  I'nited 
States,said:  "It  would  seem  ditticult  to  suhstitutewonls.whichare  more 
intelligible  or  less  liable  to  misconstruction  than  those,  which  are  to  be 
explained.  A  contract  is  an  agreement,  in  which  a  party  undertakes  to 
do  or  not  to  do  a  particular  thing.  The  law  binds  him  to  perform  his 
undertaking;  and  this  is  of  course  the  obligation  of  his  contract." 

In  Todd  V.  Crumb,  5  McLean,  172,  it  was  held,  that  a  judgment  is 
not  an  agreement,  contract  or  promise  in  writing,  nor  is  it  in  a  legal 
sense  a  specialty. 

In  Garrison  v.  Citv  of  Xew  York,  21  Wall,  at  page  203.  "Mr.  Justice 
Field,  in  delivering  the  opinion  of  the  Court,  said  :  "It  mav  be  doubted, 
whether  a  judgment  not  founded  upon  an  agreement  express  or 
implied  is  a  contract  within  the  moaning  of  the  constitutional  pro- 
hibition. It  is  sometimes  called  by  text-writers  a  contract  of  record, 
because  it  establishes  a  legal  obligation  to  pav  the  amount  recovered, 
and  by  fiction  of  law  where  there  is  a  leeal  obligation  to  pay.  a  promise 
to  pay  is  implied.  It  is  upon  this  iirinci]ile.  savs  Chittv,  that  an  action 
in  form  ex  contractu  will  lie  on  a  judgment  of  a  court  of  record.    But 


24  PEERCE  V.    KITZMILLER.  [BOOK  I. 

it  is  not  perceived,  how  this  fiction  can  convert  the  result  of  a  proceed- 
ing not  founded  upon  an  agreement  express  or  implied  but  upon  a 
transaction  wanting  the  assent  of  the  parties  into  a  contract  within  the 
meaning  of  the  clause  of  the  Federal  Constitution,  which  forbids  any 
legislation  impairing  its  obligation.  The  purpose  of  the  constitutional 
prohibition  was  the  maintenance  of  good  faith  in  the  stipulations  of 
parties  against  any  State  interference.  If  no  assent  be  given  to  a  trans- 
action, no  faith  is  pledged  in  respect  to  it ;  and  there  would  seem  in 
such  case  to  be  no  room  for  the  operation  of  the  prohibition.  In  the 
proceeding  to  condemn  the  property  of  the  plaintiif  for  a  public  street 
there  was  nothing  in  the  nature  of  a  contract  between  him  and  the  city. 
The  State  in  virtue  of  her  right  of  eminent  domain  had  authorized 
the  city  to  take  his  property  for  a  public  purpose  upon  making  to  him 
a  just  compensation.  All  that  the  Constitution  or  justice  required,  was, 
that  a  just  compensation  should  be  made  lo  him,  and  his  property 
would  then  be  taken,  whether  or  not  he  assented  to  the  measure." 

In  delivering  the  opinion  of  the  court  in  Blount  v.  Windley,  5  Otto, 
at  page  176,  Mr.  Justice  Miller  said:  "The  proposition  of  plaintiff 
in  error  is,  that  when  he  recovered  the  judgment  against  the  defendant, 
he  had  a  right  to  exact  and  receive  in  payment  of  that  judgment  gold 
or  silver  coin  or  the  legal-tender  treasury-notes  of  the  United  States, 
and  that  defendant  had  no  right  to  pay  him  anything  else;  that  the 
judgment  was  a  contract,  and  the  obligation  of  it  is  impaired  by  the 
statute,  which  authorizes  payment  in  something  else.  It  is  undoubt- 
edly true  in  some  sense  and  for  some  purposes,  that  a  judgment  has 
been  treated  and  considered  as  a  contract;  and  we  are  not  disposed 
to  deny,  that  the  judgment  in  this  case  is  evidence  of  a  contract,  but 
the  judgment  is  only  a  contract,  because  it  is  evidence  of  a  debt  or 
obligation  on  the  part  of  defendant  due  to  plaintiff.  The  judgment 
itself  presupposes  and  is  founded  on  some  antecedent  o])ligation  or 
contract  and  is  only  a  higher  evidence  of  that  contract,  because  it 
now  has  the  sanction  of  the  judicial  determination  of  its  validity  and 
amount  by  a  court  of  law.  The  essential  nature  and  character  of  the 
contract  remains  unchanged;  and  in  deciding  how  far  it  may  be 
affected  by  legislation  we  must  look  mainly  to  the  original  contract." 

Mr.  Justice  Swayne,  in  delivering  the  opinion  of  the  court  in 
Edwards  v.  Kearzey,  6  Otto.  590,  said :  "A  contract  is  the  agreement 
of  minds  upon  a  sufficient  consideration  that  something  shall  l)e  done, 
or  shall  not  be  done." 

It  is  clear,  tliat  a  judgment  founded  upon  a  tort  can  in  no  case  be 
regarded  as  a  contract  'there  is  no  agreement  of  the  parties;  and 
there  isno  con«ifleration.  It  is  founded  upon  no  agreement  of  the 
parties,  and  there  could  have  been  no  consideration  moving  the 
parties  in  such  a  case.  Instead  of  harmony  there  was  discord ; 
instead  of  agreement  there  was  disagreement;  and  it  would  be  absurd 
to  say,  that  under  such  circumstances  there  could  be  a  contract  between 


CHAP.    II.]  PEEKCE  V.  KITZMILLER.  25. 

the  parties.  But  it  is  insi.sted  by  counsel  for  plaintiff  in  error  that 
"in  Gunn  v.  Barry,  15  Wall.  (JIO,  the  Supreme  Court  of  the  United 
States  expressly  affirmed,  tluit  a  convention  of  the  citizens  of  a  State 
could  no  more  set  aside  a  judgment  or  destroy  a  vested  right  than  a 
legislature." 

It  was  taken  for  granted  in  that  case,  and  not  controverted  by  any 
one,  that  the  judgment  was  founded  upon  a  contract,  the  obligation 
of  which  had  been  impaired.  Mr.  Jusi'ce  Swayxe.  at  page  623,  says : 
''The  legal  remedies  for  the  enforcement  of  a  contract,  which  belong: 
t0  4t_at  the  time  and  place,  where  it  is  made,  are  a  part  of  its  obliga- 
tion." This  case  decides,  what  has  been  conceded; tnlhis^pTnion,  tHat 
the  people  of  a  State  in  adopting  their  Constitution  cannot  impair  the 
obligation  of  a  contract  any  more  than  a  legislature  can.  If  the  judg- 
ment had  been  founded  upon  a  tort,  it  would  have  been  shown  in  the 
case;  but  it  seems  to  have  been  conceded,  tluit  it  was  founded  on  con- 
tract. It  was  not  intended  by  the  Court  to  give  any  different  definition 
to  "contract,"  than  had  been  so  often  by  the  same  Court  applied  to  the 
term.  That  case  was  not  intended  to  and  does  not  decide,  that  a 
judgment  founded  on  tort  is  in  any  sense  whatever  a  contract.  We 
conclude,  that  the  constitutional  provision,  which  we  are  considering, 
does  not  impair  the  obligation  of  a  contract. 

Judges  Haymoxd  and  Green  concurred. 

Judgment  reversed.     Petition  dismissed.^ 

'In   accordance   with    tlie   opinion   of   the   court   in    tliis    and   many   other 
cases,  it  would  seem  that  the^[udgment  merel}-  ascertains  and  estaklishps  in 

a     judicial     prnfionHinfir    ihn    PvicitpnfP    nf    tin     nhligntinn     -ilrpifly    oxi^^inor;     that 

while  tlie  right  is  merged  in  the  judgment  the  cause  of  action  is  not  and 
renui insTInaTrected.  As  Chief  Justice  Shaw  well  said:  "Although  a  judg- 
ment, to  some  purposes,  is  considered  as  a  merger  of  the  former,  and  as  consti- 
tuting a  new  cause  of  action,  yet  when  the  essential  rights  of  parties  are 
influenced  by  the  nature  of  the  original  contract,  the  court  will  look  into 
the  judgment  for  the  purpose  of  ascertaining  what  the  nature  of  such  original 
cause  of  action  was.  Wyman  v.  Mitchell,  1  Cowen,  316.  Any  other  decision 
would  carry  the  technical  doctrine  of  merger  to  an  inconvenient  extent  and 
cause  it  to  work  injustice."     Betts  v.  Bagley   (1832)    12  Pick.  572,  580. 

If,  therefore,  the  causejjf^ action  do  not  arise  upon  a  contract,  or  if  it  a'-''=o 
upon  a  statute  imposing  a  mere  duty  or  obligation,  then  the  judgment  rendered 
is  not  a  contract  within  the  clause  impairing  1  ho  Qbligation  of  contract  (Const, 
of  U.  S.,  Art.  1.  §  10).  In  accordance  with  this  view  are  the  following  cases: 
Louisiana  r.  Aiayor  (1883)  109  U.  S.  285;  Nelson  r.  St.  Martin's  Parish 
(1883)  111  U.  S.  716,  720;  Chase  v.  Curtis  (1884)  113  U.  S.  452.  464; 
Wisconsin  v.  Pelican  Ins.  Co.  (1887)  127  U.  S.  265.  2!)3 ;  Freoland  r.  Williams 
(1888)  131  U.  S.  405,  413;  Morley  r.  Lake  Shore  Ry.  Co.  (1802)  146  U.  S. 
162,  168-170;  Smith  i\  Broderick  (18!)5)  107  Cal.  644.  651:  Wells  r.  Edmison 
(1885)  4  Dak.  46.  50.  ("A  judgment  is  essentially  dilTorent  from  a  contract 
in  its  nature  and  clement  and  is  doomed  in  law  an  'obligation  of  record.'") 
O'Brien  r.  Young  (1884)  05  N.  Y.  428;  Remington  Paper  Co.  r.  O'Dougherty 
(18S4)   06  X.  Y.  666   (affirming  32  Hun,  255;  but  see  The  Gutta-Percha  Shoe 


26  white's  case,  [book  i. 

SECTION    11. 

Obligation  Arises  from  a  Duty. 

1,  customary. 


WHITES    CASE. 

Hilary.    Common  Pleas,  1158. 

[Dyer,  158  h.  p.  32.] 

One  White  brought  trespa^s_onjthe  case  against  an  jnnkeeger  of 
Uxbridge  alleging  the  custom  of  the  realm  to  keep  safely  the  goods 
of  his  guests,  &c.  and  that  his  goods  were  in  the  inn,  and  taken 
away,  &c.  And  the  defendant  pleaded  that  they  were  not  taken 
away  by  his  default,  or  the  default  of  his  servants.    And  upon  evidence 

Co..  V.  Mayor  (1888)  108  N.  Y.  270)  ;  Sherman  v.  Langham  (1897)  92  Tex.  13, 
19.  See,  however,  Bettman  r.  Cowley  (1898)  19  Wash.  207,  to  the  eflfect  that 
a  law  limiting  the  duration  of  the  liens  of  existing  judgments  is  an  impairment 
of  contract. 

If  the  iudgmp"f  ig  hnsprl  upon  a  c_n?traot^t.lieTT^the^iidgnient  is  a  con- 
tract, at  least  within  the  federal  inhibition  (Nelson  v.  St.  Martin's  Parish, 
supra),  and  althouglftlurjiiagment  itself  is  conclusive  as  to  the  rights  of 
the  parties  to  it,  yet  the  court  may  inquire  whether  the  judgment  is  founded 
on  a  contract  or  not.  Stewart  o.  Jefferson  Police  Jury  (1885)  116  U.  S.  135; 
State  V.  New  Orleans  (1885)  37  La.  Ann.  13;  Wisconsin  v.  Pelican  Ins.  Co. 
(1887)    127  U.  S.  265,  292-293;  Huntington  v.  Attrill    (1892)    146  U.  S.  657. 

From  the  above  authorities  it  would  seem  that  the  Common  is  in  accord 
with  the  Civil  Law  as  to  the  effect  or  influence  of  a  judgment  upon  a  cause 
of  action.  "The  doctrine  laid  down  by  the  Supreme  Court  of  Louisiana,  in 
Gustine  v.  The  Union  Bank  [12  Rob.  La.  412,  418]  in  1845,  may  be  taken  to 
represent  the  civil-law  conception  of  a  judgment.  The  court  then  said  that 
a  judgment  does  not  create,  add  to,  nor  detract  from,  the  indebtedness  of  a 
party;  it  only  dechires  it  to  exist,  fixes  its  amount,  and  secures  to  the  suitor 
the  moans  of  enfoixTng  payment.  We  recur  then  to  tlie  obligation  on  which 
the  judgment  is  basVd.  Thafobligation  may  have  arisen  from  a  contract,  or 
from  a  quasi-contract,  or  from  an  offence,  or  from  a  quasi- offence,  or,  finally, 
from  the  mere  operation  of  law;  and  such  obligation  is  not  added  to,  nor 
detracted  from,  by  the  decree  of  the  court.  It  is  declared  to  exist;  it  is 
interpreted;  it  is  applied:  it  is  put  in  the  way  of  enforcement  by  the  judicial 
power  of  the  state."    William  Wirt  Howe,  Studies  in  the  Civil  Law,  189-190. 

For  instances  of  recovery  upon  a  recognizance,  see  State  v.  McGuire  (1889) 
42  Minn.  27,  28;  Bodine  v.  Commonwealth  (1854)  24  Pa.  St.  09,  71.  For 
the  history,  nature  and  effect  of  a  recognizance,  see  People  v.  Kane  (1847) 
4  Den.  530.— Ed. 


CHAP.    II. J  CITY  OF  LONDON    V.  GOUEE.  27 

it  was  agreed,  per  Curiam,  that  if  a  guest  come  to  an  innkeeper  to 
harbour  there,  and  he  say  that  his  house  is  full  of  guests,  and  do  not 
admit  him,  &c.  and  the  party  say  he  will  make  .shift  among  the  other 
guests,  and  bv  there  robbed  of  liis  goods,  the  innkeeper  shall  not  be 
charged,  because  he  refused  the  guest.  And  if  the  cause  of  the  refusal 
be  false,  the  guest  may  have  his  action  on  the  case  for  his  refusal.  And 
the  evidence  above  well  stands  with  the  issue  before  joined.  Quod 
nota} 


CITY  OF  LONDON  v.  GOREE. 

Trinity.    King's  Bench,  1677. 

[3  Kehle,  677.^] 

Special  Verdict  on  non  Assumpsit  find  there  was  no  actual  promise, 
but  find  prescription  for  the  duty  on  Waiage.  Symsoti  for  the  Plaintiff, 
tliat  in  Carpenters  Case  here,  and  for  the  duty  of  Walter-Bailage  In- 
debitatus lieth :  And  by  Rainsford  Chief  Justice  in  the 
Exchequer  on  argument  it  was  adjudged  that  Indebitatus  lay  upon 
acceptance  of  a  Bill  of  Exchange,  and  on  a  Policy  of  assurance  In- 
debitatus lieth,  and  Hob.  on  Sheriffs  Receipt  of  ^loney,  and  against 
the  E.xecutor  on  Devastavit,  and  all  the  actions  for  Wharfage,  Cranage, 
and  duties  of  the  City  are  thus;  and  in  Bradshair  and  Proctors  Case 

'A3  to  the  liability  of  an  innkeeper  see  Cayle's  case  (1584)  8  Co.  32a, 
in  which  early  authorities  are  collected;  Morgan  v.  Ravey  (1861)  6  H.  &  N. 
265,  275  (Wharton's  edition)  and  the  elaborate  note  at  end  of  tlie  case  in 
which  the  more  modern  cases  are  collated. 

In  Morgan  v.  Ravey,  supra,  the  action  was  by  a  guest  against  the  executors 
of  an  innkeeper,  whose  property  had  been  stolen  during  the  night,  and  it  was 
held  that  the  action  lay  against  the  executors:  "We  think  the  eases  have  es- 
tablislied  that  where  a  relation  exists  between  two  parties,  which  involves  the 
performance  of  certain  duties  by  one  of  them  and  the  payment  of  reward  to 
liim  by  the  otlier,  the  law  will  imply,  or  the  jury  may  infer,  a  promise  by  each 
party  to  do  what  is  to  be  done  by  him.  We  cannot  distinguish  tliis  case 
from  the  case  of  a  carrier.  If  so,  the  objection  that  such  an  action  would  not 
lie  against  executors  because  it  is  for  a  tort  does  not  arise."  (per  Pollock, 
C.  B.) 

For  a  ca.se  of  negligence  resulting  in  an  injury  to  the  person,  see  Stanley  r. 
Bircher's  executor  (188.3)  78  Mo.  245,  holding  that  action  does  not  survive 
against  the  executors. — Ed. 

-See  also  same  case  1  Ventris.  2!)8. 

The  case  is  reported  in  Levinz,  174,  as  follows: 

".Assumpsit  for  money  due  by  custom  for  scavage.  L'pon  non  Afisumpait 
tlie  jury  found  the  duty  to  be  due,  but  that  no  promise  was  expressly  made. 
.\nd  whetlier  Assumpsit  lies  for  this  money  thus  due  by  custom  without 
e.xpress  promise,  was  the  question.     Resolved  it  does." — Ed. 


28  JACXSOX    v.    KOGERS.  [BOOK    I. 

Indebitatus  for  Fees,  as  Judge  of  the  Sheriffs  Court,  and  this  Term 
in  Woodward  and  Ashtons  Case,  Indebitatus  by  one  Clerk  against  the 
other  for  Fees;  and  the  reason  of  Slades  Case^  was  not  on  the  Wager 
of  the  Law,  but  because  he  was  not  indebted ;  and  by  the  Act  of  Parlia- 
ment confirming  the  custom,  this  is  a  duty  that  ariseth  ex  quasi  Con- 
tractu, and  not  ex  delicto,  though  it  were  originally  but  a  charge  upon 
the  Subject,  for  it  being  agreed  that  debt  lieth,  a  Fortiori  an  Indebita- 
tus.    Judgment  for  the  Plaintiff.- 


JACKSOX  V.  EOGERS. 

Michaelmas.     King's  Bench,  1683. 

[2  Shower,  327.] 

Action  sur  le  Case,  for  that  whereas  the  Defendant  is  a  Common 
Ca rrier  i rom  Lon don  to  Lymington  &  abindc  retorsnm,  and  setting  it 
forth  as  the  Custom  of  England,  that  he  is  bound  to  carry  Goods,  and 
that  the  Plaintiff  brought  him  such  a  Pack,  he  refused  to  carry  them, 
though  offered  his  Hire ;  and  held  by  the  Lord  Jefferyes,  that  the  Action 
is  mahitainable^^as  well  as^itj^agaiiist^an^jmi^keepe^^  for  refusing 
GfuestTor  a  Smith  on  the  Eoad  who  refuses  to  shoe  my  Horse,  being 
tendred  Satisfaction  for  the  same.  Note,  That  it  was  alledged  and 
proved  that  he  had  Convenience  to  carry  the  same;  and  the  Plaintiff 
had  a  Verdict.^ 

'For  Slades'  case  and  its  importance  in  the  history  of  assumpsit,  see  Mr. 
Ames'  History  of  Assumpsit,  2  Harv.  Law  Rev.  55,  56. — Ed. 

-"The  earliest  reported  case  of  Indebitatus  Assujnpsit  upon  a  customary  duty 
seems  to  be  the  city  of  London  v.  Goree,  decided  seventy  years  later  than 
Slades'  case."    lb.  65.— En. 

•■•Anonymous  (Mich.  Term.  2  Will.  &  Mary)  12  Mod.  3;  "An  action  lies 
against  a  common  carrier  for  refusing  to  carry  money,  if  he  do  not  assign  a 
particular  reason  for  it." 

"if  a  man  takes  upon  himself  a  publick  employment,  he  is  bound  to  serve 
the  publick  as  far  as  his  employment  extends;  and  for  refusal  an  action 
lies,  as  against  a  farrier  refusing  to  shoe  a  horse.  Keilw.  50.  against  an  inn- 
keeper refusing  a  guest,  when  he  has  room.  Dier,  L58,  pi.  32,  against  a  carrier 
refusing  to  carry  goods  when  he  has  convenience,  his  waggon  not  being  full. 
He  had  known  such  action  brought,  and  a  recovery  upon  it,  and  never  dis- 
puted. So  an  action  will  lie  against  a  sherifT,  for  refusing  to  execute  process. 
The  same  reason  will  hold,  that  an  action  should  lie  against  the  post-master, 
for  refusing  to  receive  a  letter,  etc."  Lane  v.  Cotton  (1701)  1  Ld.  Ray,  646, 
654.  See  also  the  early  cases  of  Upshare  v.  Aidee  (1697)  1  Comyns,  25; 
Middleton  v.  Fowler   (1698)    1  Salk.  282. 

In  the  case  of  a  common  carrier  assumpsit  lies,  Orange  Bank  v.  Brown 
(1829)  3  Wend.  158,  161;  Patten  v.  Magrath  (1839)  1  Rice  162;  McCall  v. 
Forsyth    (1842)    4  W.  &  S.   179,   although  case  is  the  most  usual  form  of 


CHAP,   II,]  SrEAKli  V.   UICIIAUDS.  '  2(9 


2.    OFFICIAL. 


SPEAKE  V.  RICHARDS, 

Trinity.    Common  Pleas,  1618, 

[Hohart,  20G.] 

Hugh  Speake  brought  an  ajitmn^  debt,  of  five  hundred  and  twenty- 
three  pounds  and  seventeen  shillings,  against  Edward  Richards,  late 
higlLsht^riff  of  the  county  of  Southampton,  and  declared  that  one 
Paramour  and  others  were  bound  ])y  recognizance  in  chancery  in  two 
thousand  pounds  to  the  plaintiff,  and  that  after  other  process  and 
judgment,  10  Julii  14  Jac,  the  plaintiff  sued  a  levari  fac.  to  the 
defendant,  returnable  15  Mich.,  which  was  delivered  Aug.  1,  where- 
upoti  iho.  dofondarit  Jevjedjjie  sum,  and  at  the  day  returned  that  he 
hadju^kiitlie  sam€^sum,-^tuas  par(Hos7i_abeoZSTi^tjQt--dJ^^  it 

in  coiirt ;  per  quod,  &c.  The  defendant,  quoad  308,  pleaded  nihil  debet, 
whereupon  the  plaintiff  took  issue ;  and  as  to  the  rest  he  pleads,  that 
after  the  issuing  of  the  writ,  and  before  the  return,  scil.  Aug.  31,  he  did 
pay  unto  the  plaintiff'  the  same  siim,  whereupon  the  plaintiff,  by  his 
acquittance,  the  same  day,  reciting  that  he  had  received  it,  did  acquit 
him  of  it ;  whereupon  the  plaintiff  demurred  in  law. 

The  first  question^  in  this  case  was,  wbefhej  the  nction  of^dgbt  would 
lie^ because  there  was  no  contract  between  the  plaintiff  and  the  sheriff. 
But  that  was  resolved  by  the  court  that  it_would  lie;  for  though  there 
were  no  actual  contract  yet  there  was  a  kind  of  contract  in  law,  so  it  is 
ex  quasi  contractu.  And  therefore  upon  damages  recovered  in  an 
action  of  trespass,  the  plaintiff  shall  have  an  action  of  debt ;  and  by  the 
same  reason  when  the  money  is  levied  by  the  sheriff,  so  as  the  action 

action,   and   see  the  somewhat   anomalous   ease  of   Dickinson   r.   Winchester 
(1849)   4  Cush.  114,  per  Sii.\w,  C.  J. 

The  followin;^  passage  gives  the  Roman  Law,  quasi-contractual  in  its  origin 
and  nature,  on  this  branch  of  the  subject : 

"A  shipowner,  innkeeper,  or  stablekeeper,  who  takes  charge  of  property 
belonging  to  a  traveller,  is  answerable  for  such  property  in  like  manner  as 
though  he  had  concluded  an  express  contract  to  that  effect.  This  liability 
was  first  introduced  by  the  pra^or.  If  the  property  in  question  is  lost  or 
injured,  the  traveller  can  sue  for  full  damages  by  the  actio  dc  iTccpto,  unless, 
indeed,  the  defendant  (the  shipowner,  &c.)  can  prove  that  the  loss  was  caused 
by  the  traveller's  own  negligence  or  by  an  unavoidable  accident  (vis  major). 
L.  1  pr.  D.  nauta>  caup.  (4,  !))  ;  Ait  praetor:  Nautir,  caupones,  stabularii.  quod 
cujusque  sahnini  fore  receperint.  nisi  restituent.  in  eos  judicium  dabo."  Led- 
lie's  Sohm,  427.    See  also,  2  Windscheid's  Pandektenrecht,  §  .384. — Kd. 

'Only  so  much  of  the  case  is  given  as  relates  to  this  question. — Ed. 


30  SPEAKE  r.  RICHARDS.  [BOOK    I. 

ceased  against  the  defendant,  the  same  action  is  ipso  facto  by  law 
transferred  to  the  sheriff,  having  both  the  judgment  to  make  it  a  debt, 
as  before,  and  the  levy  to  make  him  answerable;  like  unto  the  case 
of  1  H.  7.  of  a  tally  delivered  to  the  customer,  as  soon  as  money  comes 
into  his  hands  he  is  made  a  debtor.  Qimre,  if  an  action  of  debt  may 
not  be  had  against  the  executor  as  the  principal  debtor,  declaring  of  a 
devastavit  by  him.^  Debt  lies  by  corporations  for  the  penalties  forfeited 
upon  their  laws;  so  for  amerciaments  in  the  court  barons;  so  11  H. 
7.  14.  for  three  pounds  forfeiture,  upon  a  custom  for  pound  breach; 
and  34  H.  6.  36.  &  9  E.  4.  50.  It  is  holden  that  upon  such  levies  by  the 
sheriff  appearing  upon  record,  the  court  may  award  a  distringas,  or  the 
party  may  have  a  fieri  fac.  or  elegit  against  the  sheriff,  to  levy  as  much 
as  his  own:  see  Mich.  8  H.  8.  Keports,  Crooke,  187.  0.  N.  in  the 
exchequer  makes  the  sheriff  debtor  to  the  king,  and  the  debtor  himself 
debtor  to  the  sheriff;  and  though  an  action  of  account  will  lie  properly 
in  this  case,  yet  the  same  case  will  many  times  bear  both  actions,  though 
the  money  he  received  per  auter  mains,  or  the  like.^  But  then  the 
action  of  account  is  necessary,  when  the  first  receipt  ah  initio  was 
directed  to  a  merchandizing,  which  makes  uncertainty  of  the  neat 
remain  till  account  finished ;  or  where  a  man  is  charged  as  bailiff  of  a 
manor,  or  the  like,  whereupon  the  certainty  of  his  receipt  appears  not 
till  account.^  Yet  even  in  the  case  of  merchandizing  an  action  of  debt 
will  lie  for  the  sum  received  before  the  merchandize,  yea  and  after  the 
merchandize,  for  so  much  as  he  hath  not  so  employed ;  and  therefore  if 
I  deliver  an  hundred  pounds  to  one,  to  buy  cattle,  and  he  bestow  fifty 
pounds  of  it  in  cattle,  and  I  bring  an  action  of  debt  for  all,  I  shall  be 
barred  in  that  action  for  the  money  bestowed,  and  charges,  &c. ;  but  for 
the  rest  I  shall  recover. 

4n  Wheatley  v.  Lane  (1G68-9)  1  Wms.  Saunders,  216  and  n.,  the  Qucere 
was  resolved  in  the  afTirmative. 

In  Dinf^ley  v.  TIalse  (1(579)  2  Show.  55  it  was  said:  "Debt  against  an 
executor ;  no  assets  pleaded ;  assets  found ;  and,  upon  o  devastavit  returned, 
there  is  judgment  against  him  dc  bonis  propriis:  the  plaintiff  brings  a  new 
action  of  debt  upon  that  judgment,  reciting  all  that  matter,  and  laid  it  in 
the  debet  and  detinet. 

"Resolved,  that  the  defendant  is  bound  to  put  in  special  bail,  though  an 
executor ;  because  there  might  have  issued  a  fieri  facias  de  bonis  propriis.  And 
though  this  be  a  now  way  to  recite,  etc.,  yet  the  court  knew  no  inconvenience 
in  it,  it  being  now  become  the  executor's  own  debt:  the  sole  reason  why 
executors  are  not  bound  to  put  in  spe<-ial  bail,  is  because  non  constat  whether 
they  have  assets  or  no;  but  the  jury  having  found  assets,  they  ought  to  put 
in  ape<;ial  bail  to  an  action  of  debt  on  such  judgments.  Piulcd  by  the  whole 
court." — E». 

^Debt  was  not  concurrent  formerly  with  account,  but  afterwards  became  so 
when  the  amount  was  liquidated.     See  Mr.  Ames  in  2  Harv.  Law  Rev.  66. — Ed. 

■"For  a  description  of  this  obsolete  action,  see  C.  C.  Langdell:  A  Brief 
Survey  of  Equity  Jurisdiction,  74  ct  seq. — Ed. 


CHAP.    II.]  KING  V.  MOORE.  31 

KING  V.  MOORE. 

Supreme  Court  of  Alabama,  1844. 

[G  Alabama,  160.^] 

King,  the  present  plaintiff  in  error,  was  summoned  as  a  garni- 
shee, at  the  suit  of  Moore  against  Tjewis,  and  answered,  that  he 
had  in  his  hands  113  doHars  belonging  to  the  defendant,  the  remainder 
of  the  proceeds  of  a  sale  made  by  him  as  constable,  after  satisfying 
the  fi.  fas.  directed  to  him.  In  a  supplemental  answer,  he  asserts  the 
money  had  been  demanded  from  him  by  the  defendant  in  execution,  and 
ihat  he  had  received  notice  of  a  rule  against  him  to  pay  over  the  money. 

The  court  rendered  judgment  against  him  for  the  amount  of  the 
judgment  previously  rendered  against  the  defendant  in  attachment, 
which  was  less  (lian  the  sum  in  his  hands.  He  now  assigns  the  judg- 
ment as  error. - 

GoLDTinvAiTE,  J. — In  Zurcher  v.  Magee,  2  Ala.  Rep.  253,  we  held, 
that  mnTiPY  pnllopfpfl  hv  a  shoriff  wtig  nnf  snhjpnt  fo  an  attach- 
ment nfTflinst  thp  phiintifF  in  the  execution ;  but  the  principle  of  that 
case  is  supposed  not  to  govern  this.  One  reason  why  money,  in  this 
condition,  cannot  be  reached,  is,  that  it  is  in  the  custody  of  the  law; 
and  it  would  be  greatly  inconvenient  to  allow  the  final  process  of  courts 
to  be  affected  by  other  proceedings  not  under  control  of  the  parties 
to  the  execution.  This  reason  does  not  apply  to  the  excess  which  often- 
times must,  necessarily^  rgmain  3vith_ th(L_e-'^ccutive_officer,  after  satis- 
f}^Tng_thc  plaintiff's  demamig.  The  ollicer  is  the  agent  appointed  by 
the  law,  to  sell  the  property  of  the  defendant ;  and  if,  in  the  discharge 
of  this  duty,  a  sum  of  money  remains  with  him,  it  is  the  money  of  the 
defendant,  in  no  way  distinguishable  from  any  other  case  of  agency. 
Nor  does  the  circumstance,  that  a  statute  authorizes  the  defendant, 
when  his  money  is  improperly  detained  from  him,  to  proceed  sum- 
marily against  the  officer,  bring  the  case  within  the  principle  which 
exempts  money,  in  cuslodid  le{/is.  from  attachment,  because  no  process 
is  meddled  with  ;  nor  can  any  injurious  consequences  flow  from  con- 
sidering it  in  the  same  view  as  any  other  money  in  the  hands  of  an 
agent. 

Let  the  judgment  be  affirmed. 

'Rpportc<l  likewise  in    U   Am.   Dec.  44.  with  note. — En. 

'See  Freeman  on  Exxutions   (.id.  etl.)   §  1.30  and  cases  cited. — Ed. 


33  THE  FRANCISCO  GARGUILO.  [BOOK   I. 


3.    STATUTORY. 


THE    FEANCISCO    GAEGUILO. 

District  Court  of  the  United  States,  1883. 
[14  Federal  Reporter,  495.] 

Benedict,  D.J. — This  case  comes  before  the  court  upon  exceptions 
to  the  libel.  The  facts  averred  in  the  libel  are  in  substance  these : 
The  libelant,  John  E.  Johnson,  being  a  regular  licensed  pilot,  was 
employed  to  pilot  the  bark  Francisco  Garguilo  from  sea  to  the  port 
of  New  York,  and  in  fact  did  bring  that  vessel  in  from  sea.  When 
the  vessel  was  about  to  leave  the  port  the  next  time,  the  master  of 
the  vessel  arranged  with  the  libelant  to  meet  him  at  a  certain  time 
and  place  in  the  city  of  New  York,- whence,  according  to  the  arrange- 
ment, the  pilot  and  the  master  were  to  go  together  on  board  the  bark, 
and  the  bark  was  then  to  be  taken  to  sea  by  the  libelant.  In  pursu- 
ance of  this  arrangement,  the  libelant  presented  himself  at  the  time 
and  place  appointed.  The  master  did  not  then  appear,  but  went  on 
board  his  vessel  and  to  sea  without  a  pilot. 

The  statute  of  the  state  of  New  York  provides  that  "any  pilot 
bringing  in  a  vessel  from  sea  shall,  by  himself  or  one  of  his  boat's 
company,  be  entitled  to  pilot  her  to  sea  when  she  next  leaves  the 
port."  By  virtue  of  this  statute  the  libelant,  upon  the  facts  stated, 
became  entitled  to  take  this  vessel  to  sea  on  the  voyage  described  in 
the  libel.  An__obligation  to  employ  and  pay  the  libelant  for  that 
service  was  created  by  jhe^startrrte: — Upon  due  tender  of  the  service 
by  ^thejibelant  and_refusal  by  the  master  to  accept  the  same,  a  right 
of  action  for  damages  resulting  accrued  to  the  libelant:  Tliis  ri^gtit 
of  action  Rising  out  of  the  non-performance  of  a  quasi  contract^of 
pilotage  is  maritime  in  character,  "and- may  be  ejiforced  in  admiralty. 
The  case  is  similar,  in  these  respects,  to  cases  decided  by  the  supreme 
court  of  the  United  States.  Steamship  Co.  v.  Joliffe,  2  Wall.  450; 
Ex  parte  McNiel,  13  Wall.  242. 

In  order  to  make  a  proper  tender  of  his  services  as  outward  pilot 
for  the  vessel,  it  was  sufficient  for  the  pilot  to  present  himself  at  the 
time  and  place  appointed  by  the  master  to  meet  the  pilot  and  take 
him  on  board.  Under  the  circumstances  stated  in  the  libel  it  was 
not  necessary  for  the  pilot  to  present  himself  on  board  the  vessel  in 
order  to  make  the  tender  of  service  complete.  Nor  is  the  rendition 
of  some  service  by  the  pilot  on  board  of  the  vessel  necessary  to 
charge  the  vessel  with  liability  for  the  damages  resulting  from  the 
non-performance  of  the  obligation  created  by  the  statute. 


CHAP.    II.]  IN   THE  EXCHEQUEU   CIIA.MBEIJ,  33 

There  must  be  a  decree  for  tlie  libt'lant  upon  the  exceptions,  with 
leave  to  claimant  to  answer  on  payment  of  costs.^ 


SECTION'  irr. 

Obligation  Arises  from  an  Unjust  Enrichment. 


ANONYMOUS. 

In  the  Exchequer  Chamber. 

Jenkins'  Century  Cases,  Case  V. 

The  Wife  of  A  receives  £10  to  the  use  of  A  and  this  comes  to  the 
Use  of  her  Husband  in  a  convenient  or  necessary  Way;  altho'  the 
Husband  did  not  command  it,  nor  consent  afterwards,  he  is  liable 
to  this  Debt,  and  the  Count  shall  be  of  a  Receipt  by  the  Hands  of  the 

'For  a  case  involving  the  conflict  of  laws  (of  coterminous  states)  relating 
to  pilots,  .see  The  Clymene  (1881)   9  Fed.  R.  104  and  12  Fed.  R.  340. 

Accord  with  principal  case:  Sturgis  v.  Spofford  (1871)  45  X.  Y.  440; 
Gillespie  v.  Zittlosen  (1875)  60  N.  Y.  449;  Thompson  v.  Spraige  et  al.  (1882) 
09  Ga.  409,  417-419.  ("The  liability  is  under  the  implied  contract  to  employ 
and  pay  the  pilot  first  offering,  and  is  recoverable  as  such,  and  not  as  a 
penalty.") 

In  the  Appeal  Tax  Court  v.  Union  R.  R.  Co.  (1878)  50  Md.  274,  295,  the 
court,  per  Alvey,  J.,  said:  "It  seems  to  be  settled  by  authority,  that  where 
rights  are  acquired  under  a  statute,  in  the  nature  of  a  contract,  or  where  there 
is  a  grant  of  power,  a  repeal  of  the  statute  will  not  divest  the  right  or  interest 
acquired,  or  annul  acts  done  under  it.  In  the  case  of  the  Steamship  Co.  v. 
Joliffe,  2  Wall.  450,  there  was  an  action  brought  for  half  pilot  fees,  alleged 
to  have  accrued  by  operation  of  a  provision  in  a  statute  which  had  been  re- 
pealed; and  it  was  held  by  the  Supreme  Court  that  wLmLJL_right  has  arisen 
upon  a  transaction  which  has  given  rise  to  an  implied  contract7~or~a  right 
in  the  nature  of  a  contractTlvunKntjred"  by  sLaLule,  and  has  been  so  far  per- 
fected  that  nothing  remains  to  begone  "By  tTTe^aity  asseftinw~1t,  the  repeal 
of  tlie  statute  does  not  affect  it,  or  an  action  for  its  enforcement.  So  here,  if 
the  appellees  are  liable  to  be  taxed  as  owneFs  of  the^ropETty,  a  duty  has 
arisen  upon  the  assessment  made  to  pay  the  taxes  levied,  and  such  duty  could 
be  enforced  by  an  action  at  law,  as  upon  an  implied  assumpsit  (Mayor,  etc.,  v. 
Howard,  G  H.  &  J.  395),  notwithstanding  the  repeal  of  the  statute." 

See  6  Rose's  Notes  on  U.  S.  Reports,  where  numerous  cases  are  cited 
which,  it  would  seem,  abundantly  sustain  the  doctrine  laid  down  in  Steamship 
Co.  r.  Joliffe  (1804)  2  Wall.  450. 

That  a  statutory  duty  to  pay  interest  upon  a  judgment  is  a  quasi-contract, 
not  a  pure  contract,  and  so  may  be  repealed  or  modified  without  impairing  the 
obligation  of  contract,  see  O'Brien  r.  Yo\ing  (1884)  95  X.  Y.  428.  The 
opinion  by  Earl,  J.,  contains  an  elaborate  discussion  of  the  nature  of  quasi- 
contract.    See  also  Morley  v.  Lake  Shore  Ry.  Co.  (1892)  146  U.  S.  162.— Ed. 


34  LOCKWOOD    I'.    KELSEA.  [BOOK    I, 

Husband :  such  manner  of  Count  will  serve  in  Debt  in  this  Case.  The 
reason  is,  the  Wife's  Contract  is  void ;  and  it  ought  not  to  be  alledged 
in  the  Count,  but  the  Count  ought  to  be  as  above.  Nemo  debet  locu- 
pletari  ex  alterius  incommodo} 

By  the  Justices  of  both  Benches. 


LOCKWOOD  V.  KELSEA. 

Supreme  Judicial  Court  of  Xew  Hampshire,  1860. 

[41  Neiv  Hampshire,  185.] 

Assumpsit,  for  $8,  money  had  and  received.  The  cause  was  tried 
by  the  court  at  the  November  term,  1859,  when  the  facts  were  found 
to  be,  that  the  plaintiff,  being  at  the  Crawford  House,  at  the  White 
Mountains,  a  telegraphic  despatch  was  received  at  Plymouth  for  him, 
and  carried  by  stage  driver  to  the  Profile  House,  and  from  there  to 

*Thc  above  case  shows  how  deeply  rooted  the  principle  of  unjust  enrichment 
is  in  English  law.  For  the  detailed  and  specific  application  of  the  maxim — 
nemo  debet  locupletari  ex  alterius  incommodo — see  Bk.  II.  Sec.  III.  post,  more 
especially  the  cape  of  Bricrht  v.  Boyd   (1841)    1   Story,  478,  post,  

Of  the  principle  underlying  recovery  for  unjust  enrichment,  it  would  be 
hard  to  find  a  clearer  statement  than  that  of  the  distinguished  Scotch  judge. 
Lord  Inglis:  "Now,  recompense  is  a  remedial  obligation  well  known  to  the  law, 
but  that  obligation  is  founded  on  the  consideration  that  the  party  making  the 
demand  has  been  put  to  some  expense  or  some  disadvantage,  and  by  reason  of 
that  expense  or  disadvantage  there  has  been  a  benefit  created  to  the  party 
from  whom  he  makes  the  demand  of  such  a  kind  that  it  cannot  be  undone.  The 
best  and  most  familiar  example  of  that  is  the  case  of  one  building  on  another's 
land.  But  in  every  case  there  must  be,  in  order  to  ground  the  claim,  the  loss 
to  one  party  resulting  in  a  benefit  to  the  other."  Stewart  v.  Steuart  (1878) 
6  Court  of  Session  Cases,  145,  149. — En. 


No  enumeration  is  here  attempted  of  cases  permitting  recovery  based  on 
unjust  enrichment:  illustrations  will  be  found  on  almost  every  subsequent  page 
of  the  text. 

Attention  is,  however,  called  to  the  admiralty  doctrine  of  general  average, 
based  as  it  is  upon  the  theory  that  a  sacrifice  of  one's  property  "for  the  benefit 
of  all  shall  be  made  good  for  the  proportionate  contribution  of  all"  from  the 
property  so  benefited.  In  this  there  is  no  contract:  the  obligation  to  contribute 
is  clearly  equitable  or  quasi-contractual.  From  the  many  cases  on  this  subject, 
one  may  be  cited:  Barnard  i\  Adams  (IS.'iO)  10  How.  270.  For  fiu'thcr  illus- 
tration, see  Ames*  Cases  on  Admiralty,  204  et  scq.  For  the  Roman  law  illus- 
trating the  maxim,  jure  natursp  aeqiuim  est  neminem  cum  alterius  detrimento 
et  injuria  fieri  locupletiorem,  see  Ledlie's  Sohm,  pp.  423-426;  2  Windscheid's 
Pandektenrecht,  §§  421  et  seq ;  Girard,  ^Manuel  de  Droit  Remain  (.3d  cd.)  pp. 
G0.3-G18.— Ed. 


CHAP.    ]I.]  LOCKWOOD    V.    KELSEA.  35 

the  i^laintifT  by  the  defendant,  in  company  with  another  person;  that 
the  plaintiff  asked  the  defemhint  how  much  he  was  to  pay  him  for 
carrvin-,^  tlie  despatch;  that  the  defendant  said  he  was  to  have  ^24; 
that  the  pUiintiH'  said  sometiiing  about  tliat  bein^^  rather  a  high  price; 
that  the  defendant  said  $16  of  it  was  for  bringing  the  despatch  from 
the  Profde  House,  and  that  $S  was  for  forwarding  it  from  Plymouth 
to  the  Profile  House;  and  that  the  plaintiff  paid  the  defendant  $24, 
by  giving  him  two  ten  dollar  gold  pieces  and  a  five  dollar  gold  piece, 
and  receiving  back  $1. 

The  court  also  found  that  the  declaration  of  the  defendant  that  $8 
was  for  forwarding  the  despatch  from  Plymouth  to  the  Profile  House 
was  false,  that  the  defendant  knew  it  to  be  false,  and  that  the  plaintiff 
did  not  know  that  it  was  false,  but  that  the  plaintiff  did  not  pay 
said  $24,  nor  any  part  thereof,  in  consequence  of  that  false  declara- 
tion; that  the  plaintiff  did  not  pay  anything,  relying  upon  that 
declaration,  and  that  he  was  not  induced  to  pay  anything  by  that 
declaration. 

The  court,  ruling  that  the  conclusion  of  law  upon  the  foregoing 
facts  was  that  the  plaintiff  could  not  recover,  found  that  the  defend- 
ant did  not  promise  in  manner  and  form  as  the  plaintiff  had  declared 
against  him,  subject  to  the  opinion  of  the  whole  court. 

Fowler,  J.  It  is  difiicult  to  see  how  the  court  below,  upon  the 
evidence  stated,  could  have  found  as  they  did,  that  the  plaintiff  did 
not  pay  the  $24,  or  any  part  thereof,  in  consequence  of  the  false 
declaration  of  the  defendant  that  $8  of  the  sum  demanded  was  for 
forwarding  the  telegraphic  despatch  from  Plymouth  to  the  Profile 
House;  that  he  did  not  pay  anything,  relying  upon  that  false  declara- 
tion, and  was  not  induced  to  pay  anything  by  that  false  declaration; 
when  they  also  found  that  the  plaintiff  objected  to  the  claim  made  as 
too  high,  before  he  paid  it,  and  that  he  was  ignorant  of  the  falsity 
of  the  declaration.  It  would  seem  to  be  highly  improbable,  if  not 
morally  impossible,  upon  the  facts  found  to  have  existed,  that  the 
plaintiff  should  have  paid  the  $8,  otherwise  than  in  some  manner 
tlirough  the  influence  of  the  false  and  fraudulent  representation  of 
the  defendant. 

But,  notwithstanding  the  finding  of  the  court  below,  we  think  the 
plaintiff  was  entitled,  on  well  established  general  ])rinci]iles.  to  recover 
back  from  the  defendant  the  $8.  This;  i;^  not  nn  iir-tion  for  fraud  and 
<leceit,  as  it  has  been  substantially  discussed  in  the  defendant's  argu- 
ment, wherein  it  would  Iw  essential  to  the  plaintiff's  right  to  recover, 
that  he  should  have  relied  upon  a  false  representation,  knowingly  and 
intentionally  made  by  the  defendant,  and  calculated  to  deceive  a  person 
of  ordinary  sagacity,  and  have  suffered  damages  thereby.  If  such  were 
the  form  of  action,  it  is  entirely  clear,  upon  principle,  as  well  as 
autiiority,  that,  under  the  findings  of  the  court  below,  the  plaintiff 
could  not  recover.     Page  v.  Parker,  40  N.  H.  47.     But  the  present 


36  LOCKWOOD   V.    KELSEA.  [BOOK   I. 

is  an  entirely  different  kind  of  an  action  from  case  for  fraud  and 
deceit. 

The  action^oiijnonejjiadjind  received,  in  its  spirit  and  objects, 
has  beenjcorrectly  likened  to  a  bill  in  !equityy'and:^tTniiy4n-geeefal 
be  maintained  whenever  the  evidence  shows  that  the  defendant  has 
received  or  obtained  possession  of  money  belonging  to  the  plaintiff, 
which  in  equity  and  good  conscience  he  ought  to  refund  to  him.  It 
lies  only  for  mone}',  which,  ex  cvquo  et  bono,  the  defendant  ought  to 
refund ;  as  for  money  paid  by  mistake,  or  upon  a  consideration  which 
happens  to  fail,  or  for  money  obtained  through  imposition,  express  or 
implied,  or  extortion,  or  oppression,  or  an  undue  advantage  taken  of 
the  plaintiff's  situation.  In  one  word,  the  gist  of  this  kind  of  action 
is,  that  the  defendant,  upon  the  circumstances  of  the  case,  is  obliged, 
by  the  ties  of  natural  justice  and  equity,  to  refund  the  money.  One 
great  benefit  which  arises  to  suitors  from  the  nature  of  the  action  is, 
that  the  plaintiff  need  not  state  the  special  circumstances  from  which 
he  concludes  that,  ex  cvquo  et  bono,  the  money  received  by  the  defend- 
ant ought  to  be  deemed  as  equitably  and  rightfully  belonging  to  him ; 
he  may  declare,  generally,  that  the  money  was  received  to  his  use,  and 
make  out  his  case  at  the  trial.  This  is  equally  beneficial  to  the  defend- 
ant. It  is  the  most  favorable  way  in  which  he  can  be  sued.  He  can  be 
liable  no  farther  than  for  the  money  he  has  received;  and  against 
that  he  may  go  into  any  equitable  defence  upon  the  general  issue ;  he 
may  claim  every  equitable  allowance;  he  may  prove  a  release  without 
pleading  it;  in  short,  he  may  defend  himself  by  everything  which 
shows  that  the  plaintiff,  ex  aequo  et  hono,  is  not  entitled  to  the  whole 
of  his  demand,  or  to  any  part  of  it.  2  Gr.  Ev.  sec.  117;  Ld.  Mans- 
field, in  Moses  v.  Macferlan,  2  Burr.  1005;  Dutch  v.  Warren,  cited 
by  Ld.  Mansfield,  in  ]\roses  v.  Macferlan;  Dale  v.  Sollet,  4  Burr. 
2133;  Astley  v.  Reynolds,  2  Str.  915;  Guidon  v.  Hooper,  Cowper,  414, 
and  Feltham  v.  Terry,  cited  on  page  419;  Smith  v.  Smith, 
2  Johns.  240. 

An  action  for  money  had  and  received  is  maintainable  whenever 
the  money  of  one  man  has,  without  consideration,  got  into  the  pocket 
of  another.  Hudson  et  al.  v.  Robinson,  4  M.  &  Sel.  475,  per  Ld. 
Ellen  BOROUGH. 

In  the  case  before  us,  $8  at  least  of  the  plaintiff's  money  got  into 
the  defendant's  pocket,  without  any  real  consideration,  through  the 
positive  and  intentional  fraud  and  imposition  of  the  defendant,  under 
a  claim  that  he  had  paid  or  was  to  pay  it  to  the  stage  driver  for 
bringing  the  despatch  from  Plymouth  to  the  Profile  House.  The 
supposed  consideration  for  the  payment  of  the  $8  wholly  failed.  The 
defendant  neither  brought  the  despatch  from  Plymouth  to  the  Profile 
House,  or  paid,  or  was  to  pay,  any  one  else  for  bringing  it.  The  $8 
mayLjwell  1)0  regarded  as  having  been  obtained  from  the  plaintiff 
iivrough-impQsition,   extortion,   oj)pression,   or  an  undue  advantage 


CHAP.    II.]  POLICE  JURY  V.  HAMPTON.  37 

taken  of  his  situation.  It  was  claimed  and  received  for  services  never 
rendered,  or  as  compensation  for  expenses  never  incurred.  It  was  not 
claimed  for  anything  which  the  defendant  had  ever  done  and  performed 
for  the  plaintiff.  Although  it  passed,  under  such  circumstances,  from 
the  pocket  of  the  plaintilF  to  tliat  of  the  defendant,  the  money  still 
belonged  in  conscience  to  tlie  plaintiff;  the  defendant  was  bound  by 
the  ties  of  natural  justice  and  equity  to  refund  it;  and  we  think  the 
plaintiff  entitled  to  recover  it  back  in  this  form  of  action,  notwith- 
standing the  findings  of  the  court  below.  It  would  be  a  reproach  to 
the  administration  of  justice  were  it  otherwise. 

The  finding  of  the  court  below,  that  the  defendant  did  not  promise, 
must  therefore  be  set  aside,  and  a  new  finding  be  entered,  that  he  did 
promise,  in  manner  and  form  as  the  plaintiff  hath  declared  against 
him,  and  upon  tliat  finding  a  judgment  be  rendered  for  the  plaintiff 
for  the  $8  claimed,  with  interest  from  the  date  of  the  writ.^ 

Judgment  for  the  plaintiff. 


SECTION    IV. 
Obligation  Arises  from  a  Xegotiorum  Gestio. 


POLICE  JURY  V.  HAMPTOX. 

Supreme  Court  of  Louisiana,  1827. 

[5  Martin,  N.  S.,  389.] 

Porter,  J.,  delivered  the  opinion  of  the  court.  This  is  an  action 
to  recover  the  amount  of  $321,  paid  by  the  parish  of  Xew  Orleans, 
for  repairs  made  on  a  plantation  of  the  defendant. 

The  general  issue  is  pleaded.  There  was  judgment  in  the  inferior 
court  against  the  defendant,  and  he  appealed. 

It  appears  in  evidence,  that  on  the  10th  day  of  February,  1822.  a 
jury  was  assembled  in  pursuance  of  certain  regulations  of  the  parish 
of  Xew  Orleans,  on  the  subject  of  roads,  levees  and  bridges ;  w'ho,  after 
deliberation,  directed  that  certain  repairs  were  necessary  on  the  plan- 
tation of  the  defendant. 

That  on  the  12th  day  of  the  same  month,  the  syndic  gave  notice  to 
tlie  appellant  that  if  the  work  was  not  done  in  conformity  with  the 
directions  of  the  jury,  it  would  be  executed  at  his  expense,  in  pursu- 
ance of  the  IGth  article  of  the  police  regulations  of  the  parish  of  Xew 
Orleans. 

'For  an  admirable  discussion  of  the  equitable  nature  of  the  aetion  of  money 
liad  and  reeei^ed,  and  the  statute  of  limitations  applicable  thereto,  see  Roberts 
V.  Ely   (1889)    113  \.  Y.  128;  Chapman  r.  Forbes    (1S90)    123  N.  Y.  532. 

See  also,  :Mertens  v.  Roche  (1890)  .57  X.  Y.  Supp.  349;  Cory  v.  Freeholders 
of  Somerset  (1885)  47  N.  J.  181;  Bank  of  Boston  v.  U.  S.  (1874)  10  Ct.  01. 
519,  545   (per  I)k.u<e.  C.  J.).— Ed. 


38  POLICE  JURY  V.   HAMPTON.  [BOOK   I. 

The  defendant  not  having  complied  with  this  notice,  the  work  was 
executed  by  the  syndic;  and  it  is  proved,  that  it  was  done  on  reason- 
able terms,  and  that  the  work  was  accepted  by  the  jury. 

The  appellees  urge,  that  the  irregularity  in  giving  notice,  if  such 
it  be,  can  have  no  other  effect,  than  to  prevent  the  police  jury  from 
levying  the  fines  which  their  regulations  impose  on  those  who  neglect 
the  orders  they  receive  from  the  syndic ;  but  that  it  does  not  authorise 
the  defendant  to  enrich  himself  at  the  expense  of  others,  by  refusing 
to  pay  for  labor,  which  was  both  necessary  and  useful  to  him. 

The  merits  of  the  case  turn  on  the  correctness  of  the  last  position. 

It  is  a  maxim,  common  to  the  jurisprudence  of  all  countries,  that 
no  one  is  permitted  to  profit  by  the  labor  of  another,  without  com- 
pensating him  for  it.  Jvre  naturce  equum  est,  neminem  cum  alterius 
detrimento  et  injuria  fieri  locupletiorcm.  On  this  principle,  the 
Roman  jurists  held,  that  he  who  acted  for  anotlT^T-  by  fmn^npHncr  ]^^<=. 
business,    or  i3y    mdkillg~J^pairs    on    bjs^rnpprjji^    Pfl^^lrl    ropovpr    thp 

amount  of  the  expenses  incurred,  or  the  value  of  the  repairs ;  provided 
tEe^acts  of  the  negotiorum  gestor  were  necessary  and  useful  to  the 
person„for  whom  he  acted.  This  doctrine  has  descended  to  us,  "and 
makes  a  part  of  the  positive  legislation  of  the  state.  Dig.  Liv.  50, 
tit.  17,  L.  206,  ibid.  Liv.  3,  tit.  5,  L.  10,  10,  8,  1.  Toullier,  Droit  civil 
Frangais,  vol.  11,  tit.  4,  cap.  1,  No.  49.    C.  Code,  2374  and  2278. 

We  have,  then,  to  examine,  whether  the  work  done  was  useful  and 
necessary  to  the  defendant;  and  if  it  was,  whether  the  neglect  of  the 
police  jury  to  give  notice,  enables  the  appellant  to  profit  by  their  labor 
without  paying  for  it.^ 

If  such  were  the  obligations  imposed  on  the  defendant,  the  danger 
to  which  he  was  exposed  by  leaving  his  levee  out  of  repair  was  great, 
and  the  work  done  can  be  regarded  in  no  other  light,  than  useful  and 
necessary  to  him.  He  is  a  resident  of  South  Carolina.  His  planta- 
tion was  uninhabited,  and  he  had  no  agent  here;  or  if  he  had,  there 
is  no  proof  of  that  fact.  The  repairs  made  by  the  appellees,  we  are 
bound  to  believe,  prevented  the  plantation  of  the  appellant  from  inun- 
dation, and  saved  him  from  the  responsibility  he  would  have  fallen 
under  to  liis  neighl)ours,  had  their  property  been  injured  by  his  fault. 
He  should,  therefore,  pay  for  the  labour  by  which  he  was  benefited ; 
and  it  would  be  unjust  that,  in  this  manner,  he  should  enrich  himself 
at  the  expense  of  others. 

This  doctrine  does  not  in  any  manner  impusrn  that  on  which  the 
case  of  Bouligny  v.  Dormenon  &  als.  was  decided  in  this  court.  There 
the  proprietor  interfered  before  the  contract  made  by  the  police  jury 
had  been  carried  into  effect,  and  he  succeeded,  because  tlie  regulations 
for  the  construction  of  the  levees  had  not  been  promulgated,  and  were 

'E.xamination  of  question  of  noliop  omitted.  The  court  holds  that  the  lack 
of  formal  notice  ia  immaterial  as  a  defence  to  a  claim  for  payment  of  labor 
and  services  by  which  he  was  benefited. — Eu. 


CHAP.    II.]  POLICE  JURY  V.  HAMPTON.  39 

not  binding  on  the  inhabitants  of  the  parish.  Here  the  obligation 
existed,  in  virtue  of  rules  which  had  the  force  of  law.  The  contract 
lias  been  executed,  and  tlie  question  is  not  what  would  have  been  the 
right  of  tiie  appellant  had  lie  come  forward  to  prevent  the  work  being 
done.  It  is  possible  he  might  have  chosen  to  brave  all  the  consequence  , 
and  let  the  plantation  remain  without  proper  levees  until  duly  notified. 
But  his  responsibility  now,  cannot  be  tried  by  that  test.  Tf  i.^  ]\y  ^  n-f.-r- 
encejo  his  duties,  and  to  a  presumed  obedience  to  them,  hadJie  been 
here,  that  the  ritrlijts  of  thf  ncijol.iorn^p.  pestor  are  to  be  ascertained. 
Such  an  argument  might  be  used  in  any  and  every  case,  and  would 
render  the  whole  doctrine  of  our  law  on  this  subject  useless,  and  of  no 
effect.  Si  quis  absentis  negotia  gesserit,  licet  ignorantis;  tamen  quid- 
quid  iitiliter  in  rem  ejus  impendent,  vel  etiam  ipse  se  in  rem  absentis 
alicui  obligaverit,  habeat  eo  nomine  actionem.  Dig.  Lib.  3.  tit.  5. 
No.  2. 

The  failure  of  the  police  jury  to  give  notice,  cannot  defeat  this 
action.  It  is  founded  on  the  great  principle  of  equity,  that  no  man 
shall  profit  by  the  labour  of  another  without  compensation ;  and  neither 
erroTj^ nor  bad.  faith,  aHr  t4^-paFt  -of  XhQ^nsfoU(»^im.~g£stooii^\\\\  prevent 
him  recovermg__the  jimount  to  which  he  has  bcnefitpd  nnothpr,_Jf 
the  work  done  was  useful  and  necessary.    Dig.  Lib.  3.  tit.  5.    Xo.  6.  83. 

It  has  been  decided  in  this  court,  that  a  sheriff  might  recover  on  a 
quantum  meruit  for  keeping  slaves,  although  he  had  not  strictly  com- 
plied with  the  law,  and  could  not  sustain  an  action  in  his  official 
capacity.     Vol.  3.  N.  S.  576. 

The  judgment  of  the  district  court  should,  therefore,  be  affirmed 
witli  costs.^ 

'As  to  the  limitations  of  the  doctri'ic  of  negotiorum  gcstor,  see  Jenkins  r. 
Gibson  (1848)  3  La.  Ann.  203:  MulHjian  r.  Kenny  (1882)  34  La.  Ann.  50. 
("We  are  clearly  of  opinion  that  Jlua_js_ji_^{i^e^j\vhere_t^lic  woxjcman^ 
intruded  his  services,  not  only  without  the  consent  oi'  approwal  of-Uie-Oi^Tier, 
hut  an:ainst  his  will,  as  plainly  inferahlp  from  jthe.  prior  Jjnteiview  between 
them.  In  such  ease,  the  equitable  maxim  that  no  one  should  enrich_himself 
af  anoOier's  expense,  which  is  the  foundation  of  the  right  of  the  negotiorum 
(jrsior,  is  without  applieatie».  11  Toullier,  No.  5.5;  12  Duranton,  No.  19; 
.•^"Ziichariir,  §  441,  note  15;  10  Dalloz,  p.  778.  See  also  Fox  v.  Sloo.  10  A.  11; 
ilcWilliams  v.  Hagan,  4  Rob.  [La.]  374;  McCaulay  r.  Hagan,  C  Rob.  [La.] 
359.")     See  also  Railroad  v.  Turcan   (1894)  46  La.  Ann.  1. ">.".. 

"It  is  essential,"  says  Mr.  Howe,  "that  the  ticgotioruiti  <;<  Ktio  should  act  for 
the  benefit  of  another,  in  order  that  the  obligation  we  are  now  discussing 
should  arise.  But  it  seems,  in  the  opinion  at  least  of  the  highest  court  of 
France.  Dalloz,  June  18,  1872,  that  there  may  be  cases  where  he  may,  as  a 
matter  of  necessity,  act  also  for  his  own  benefit  without  prejudice  to  his  rights 
quasi  ex  eontraetu."     Studies  in  the  Civil  Law,  175,  170. — Ed. 

For  the  n'de  of  vegotiorum  gesiio  in  the  law  of  Scotland,  see  Bell's 
Principles  of  the  Law  of  Scotland,  vol.  1,  §§  540,  541.  For  the  Roman  Law  (and 
the  provisions  of  the  present  German  law)   see  2  Windseheid,  Pandektenrecht, 


40  In  re  buyaxt's  estate,  [book  i. 

In  re  BRYANT'S  ESTATE. 

Supreme  Court  of  Penxsylvaxia,  1897. 

[180  Pennsylvania,  192.] 

Opixiox  by  Mr.  Justice  Mitchell. 

When  this  case  was  first  argued,  176  Pa.  309,  the  contention  was 
over  the  corpus  of  the  estate,  for  which  there  were  five  sets  of  claim- 
ants, and  the  claim  of  George  Lodge  for  services  was  treated  in  the 
argument  as  collateral  to  the  case  of  the  English  claimants  and  nat- 
urally failing  when  that  failed.  Our  attention  having  been  called 
more  particularly  to  the  situation  of  Lodge  with  regard  to  the  prop- 
erty, we  allowed  a  reargument  on  that  point,  and  are  now  satisfied 
that  our  previous  decision  did  him  injustice.  It  appears  that  for 
several  years  before  the  death  of  Capt.  Bryant,  Lodge  was  his  man  of 
business  for  the  collection  of  rents  and  the  management  of  his  real 
estate,  as  well  as  his  confidential  adviser  in  other  matters.  The  sudden 
death  of  Capt.  Bryant  without  known  heirs  left  Lodge  in  charge 
and  quasi  possession  as  an  agent  without  a  known  principal,  and  there- 
fore with  at  least  a  moral  duty  to  look  after  the  property  for  the  real 
owner,  whoever  he  might  prove  to  be.  This  duty  the  orphans'  court 
found  that  he  had  performed  in  good  faith,  and  was  entitled  to  be 
compensated  for.  That  he  accepted  the  English  claimants  as  the  true 
heirs  and  endeavored  to  forward  their  claim  may  be  excused  in  view 
of  the  fact  that  the  learned  court  below  took  the  same  view.  One  of 
■the  items  which  seemed  most  strongly  to  cast  doubt  on  his  good  faith 
was  his  failure  to  mention  the  English  heirs  at  the  time  the  register 
was  considering  the  subject  of  administration,  but  our  attention  has 
been  called  to  the  material  bearing  of  the  rest  of  his  language  on  that 
occasion,  which  was  that  William  and  David  Bryant,  stepsons  of  the 
decedent,  were  the  nearest  of  kin,  and  there  were  "no  other  heirs  until 
further  investigation."    The  reticency  of  Capt.  Bryant  about  his  early 

§§430,431;  see  French  Code  Civil  (edition  of  Dalloz)  arts.  1.372-1375;  Italian 
Civil  Code  (French  translation  of  Prudhomme)  arts.  1141-1144  (annotated 
with  references  to  various  European  and  Spanish- American  codes  and  laws)  ; 
Spanish  Civil  Code  (edition  of  Falcon)  arts.  1888-1894  (likewise  annotated 
with  European  and  Spanish-American  references)  ;  Civil  Code  of  Louisiana, 
arts.  2273-2277,  and  the  various  Louisiana  Digests,  under  heading  Qmisi- 
Contracts. 

Inasmuch  as  the  provisions  of  the  French  Code  Civil  have  been  widely- 
copied,  a  reference  may  well  be  given  to  a  French  treatise  in  which  the  French 
literature  on  the  subject  is  elaborately  considered:  Baudry-Lacantinerie  & 
Bardc,  Trait6  de  Droit  Civil:  des  obligations  (3d  part)   pp.  1043-1063.— Ed. 


CHAP.  II.]  In  re  bkyant's  estate.  41 

history  and  family  connections  might  fairly  excuse  a  witness  in  being 
cautious  about  answers  on  that  subject. 

As  the  result  of  further  consideration  of  this  subordinate  part  of 
the  case,  we  are  not  satisfied  that  the  learned  court  below  committed 
any  error  in  holding  that  Lodge  had  rendered  services  to  the  estate 
for  which  he  was  entitled  to  be  compensated,  and  in  fixing  the 
amount. 

So  much  of  the  order  of  this  court  heretofore  entered,  as  reverses 
the  decree  of  the  court  below  upon  the  claim  of  George  Lodge  is  now 
rescinded,  and  the  decree  as  to  that  item  is  affirmed.  This  order  how- 
ever to  be  without  prejudice  as  to  any  intervening  rights  or  action  of 
the  administrator,  and  in  case  the  latter  has  accounted  fully  for  the 
assets  in  his  hands,  the  said  George  Lodge  shall  be  entitled  to  retain 
the  amount  allowed  him  by  the  orphans'  court  and  also  the  costs  of  this 
reargument  out  of  any  moneys  of  the  estate  in  his  hands  from  rents  or 
other  sources.^ 

'J'or  illustrations  of  a  not  dissimilar  doctrine,  see  Howes'  Studies  in  the 
Civil  Law,  170-178,  and  cases  there  cited. — Ed. 

While  ncgotionim  gestio  is  somewhat  of  an  exotic  in  the  Common  Law,  it  is 
perfectly  familiar  to  the  student  of  admiralty  law,  and  of  daily  application 
the  world  over  in  courts  of  maritime  jurisdiction.  The  doctrine  is  quasi- 
contractual  in  its  nature  and  application. 

In  Falcke  v.  Scottish  Imperial  Ins.  (1880)  L.  R.  34  Ch.  D.  234,  248,  Lord 
Justice  BowEN  refused  to  recognize  it  in  a  common  law  case: 

"The  general  principle  is,  beyond  all  question,  that  work  and  labour  done 
or  money  expended  by  one  man  to  preserve  or  benefit  the  property  of  another 
do  not,  according  to  English  law,  create  any  lien  upon  the  property  saved  or 
benefited,  nor,  even  if  standing  alone,  create  any  obligation  to  repay  the 
expenditure.  Liabilities  are  not  to  be  forced  upon  people  behind  their  backs 
any  more  than  you  can  confer  a  benefit  upon  a  man  against  his  will. 

"There  is  an  exception  to  this  proposition  in  the  maritime  law.  I  mention 
it  because  the  word  'salvage'  has  been  used  from  time  to  time  throughout  the 
argument,  and  some  analog\'  is  sought  to  be  established  between  salvage  and 
the  riglit  claimed  by  the  Respondents.  With  regard  to  salvage,  general  average, 
and  contribution,  the  maritime  law  differs  from  the  common  law.  That  has 
been  so  from  the  time  of  the  Roman  Law  downwards.  The  maritime  law,  for 
the  purposes  of  public  policy  and  for  the  advantage  of  trade,  imposes  in  these 
eases  a  liability  upon  the  thing  saved,  a  liability  whicfi  is  a  special  consequence 
arising  out  of  the  character  of  mercantile  enterprises,  the  nature  of  sea  perils, 
and  tlie  fact  that  the  thing  saved  was  saved  under  great  stress  and  exceptional 
circumstances.  Xo  similar  doctrine  ap])lies  to  things  lost  upon  land,  nor  to 
anytliing  except  ships  or  goods  in  peril  at  sea." 

For  tlie  doctrine  of  salvage  and  its  application,  see  Ames'  Cases  on  Ad- 
miralty, 200-292.— Ed. 


CHAPTER   III. 

Nature  of  the  Obligation. 


SECTION    I. 

Wherein  Quasi-Contract  Differs  from  a  Pure  Contract. 

1.  effect  of  statute  of  limitations. 


SHERWIN  V.  CARTWRIGHT. 

Trinity.    Common  Pleas,  1631. 

[Hutton,  109.] 

Shervin  brought  a  Writ  De_rationahile__parte  honorum  against 
Cartwright,  and  counted  of  Custom  in  the  County  of  Nottingham,  and 
shew  all  specially,  and  the  conclusion  was,  that  he  detaineth  particular 
Goods  of  the  party  Plaintiff,  which  appertained  to  him  as  his  part  and 
portion  :  And  upon  Non  detinet  pleaded,  it  was  found  that  the  Plaintiff 
was  intituled  to  this  Action  many  years  before  the  Statute  of  21  Jac. 
and  that  he  had  not  brought  his  action  within  the  time  limited  by  the 
said  Statute.  And  upon  the  special  Verdict,  the  Case  being  argued  by 
Serjeant  Ward  for  the  Plaintiff,  it  was  adjudged  for  the  Plaintiff. 

First,  because  that  this  action  is  an.  Original  Writ  in  the  Register. 
and  is  not  mentioned  in  the  said  Act,  anJThough  that  the  Issue  is 
Mon  detinet,  yet  this  islio  action  of  Detinue,  for  a  Writ  of  Detinue 
lies  not  for  money,  unless  it  be  in  bags,  Imt  Rationahile  parte  honorum 
lies  for  money  in  Pecuniis  nnmeratis,  vide  the  Book  of  Entries,  Ration- 
ahile parte  honorum:  And  this  action  lies  not  before  the  Debts  be  paid: 
And  the  Account  was,  that  thereby  it  might  be  known  for  what  it 
should  be  brought,  and  that  in  many  cases  requires  longer  time  then 
tlie  Statute  gives. 

Another  reason  was.  That  Statutes  are  not  made  to  extend  to  tliose 
cases  which  seldom  nT'jTiRypr_bfipppTi.,  aS-jhis  case_  is,  but  to  those  that 
frequently  happen. 

Also  this  Statute  tolls  the  Common  Law,  and  shall  not Jia-£xterula<i 
to  equity.  Anrl  upon  all  these  reasons  the  l!3ourt  gave  Judgment  for 
tho~TTa1ntiff :  And  Serjeant  Ward  argued  well,  and  vouched  divers 
good  Cases. 

The  Writ  of  Detinue;  snpposeth  property  in  the  thing  demanded, 
vide  50  E.  3.  G.^ 

^For  the  writ  "dc  ratinnabili  parte  bonornm,"  and  tlip  pustoni  for  which 
it  is  appropriate,  see  Fitzherhert,  New  Natura  IJrevium,  122;  see  also  Hodsden 
V.  irarri(lj,'e  (1070)  2  Williams'  Sainiders.  fiOa  (note  !))  for  a  discussion  of  the 
principal  case  and  the  question  involved. — Ed. 


CHAP.  III.] 


TALOKY  V.  JACKSON. 


43 


TALORY  V.  JACKSOX. 

TuiNiTY.     King's  Bench,  1033. 

[3  Crol-e,  513.] 

Debt  upon  the  2.  Edw.  6.  c.  13.^  for^^rr^dng  nwny  liis  rnrn,  l-Lu- 
tithes  not  bcint;  set  out  20.  Jae.  1.  and  21.  Jac.  1.  and  so  until  11  Car.  1. 
The  defendant  pleaded  for  the  last  three  years  non  debet,  and  for  the 
residue,  the  statute  of  21  Jac.  1.  c.  16.  of  Limitations.  And  hereupon 
the  plaintiff  demurred ;  and  the  record  being  read,  all  the  Court 
held,  that  the  statute  doth  not  extend  to  this  action. 

Whereupon  RolJe,  for  the  defendant,  moved,  that  the  demurrer 
should  be  waived,  and  they  would  plead  non  debet  for  all. — But  the 
Court  said,  it  could  not  be  without  the  plaintiff's  consent.- 

'This  statute  of  1548  provided  in  brief  a  throe-fold  penalty  for  failure  to 
pay  tithes  according  to  custom. — Ed. 

-In  Bullard  v.  Bell  (1817)  1  Mas.  243,  Story,  J.,  speaking  of  share- 
hnMp)'s  linhility  by  statute,  said:  "It  would  be  very  artificial  reasoning  to 
consider  it  a  case  of  contract.  It  is  certainly  not  a  case  of  express  contract; 
and  the  most  that  can^  bx^the  utmost  straining,  be  est/iblishpfl,  is,  that  it 
is 'a  case  arising  quasi  ex^contractu." 

^t  I  St.  L,im.'2irjac.]  applies  to  such  contracts  only  as  are  contracts  in 
fact,  and  not  to  sucK~obllgati6n3  quasi  ex  conxraciu,  as  are  imposed,  either 
expressly  or  constructively  by  mere  law."  U.  S.  Bank  v.  Dallam  (1836) 
TTJana,  574,  577. 

And  in  Banks  v.  Darden  (1855)  18  Ga.  318,  341,  it  is  said:  'The  liability 
of  the  directors  and  shareholders  is  not  strictly  a  contract,  although  Irom 
convenience  it  is  frequently  called  so;  bill  it  is  an  obligaLiun  qua^t  ejfcon- 

tractU   which   is   imposea   bv   npemtmn    r»f   TTiPrP   ^a\\L" 

In  an  earlier  case  the  Supreme  Court  of  Georgia  held:  "To  sustain  the 
position  that  an  action  of  debt  founded  upon  a  sfatvtory  Uabiliti/,  has  never 
been  considered  as  being  witTTm  the  KtivtiTFe'ot  Limitations  of  iJIst  James  L 
chap.  Kith.  oT"I?hgTand7  or  of  the  like  statutes  in  this  country,  but  that  such 
ctatutTVry  liability  has  always  Ijeen  regarded  inThe~fio7wrp  oj^  a  JpFciah;>,  the 
faLl«AA4ftg--a^hTrritiFS  TTlay"  be,  in  o"ur~ judgment,  most  confidently  relied  on: 
fith  Bacon's  Abridgment,  new  edition,  377.  letter  D.  Limitation  Personal 
Actions;  Angell  on  Limitations,  82,  83;  Ballantine  on  Limitation  of  Actions, 
88;  Comyn's  Dig.  413,  Temps.  G.  15;  Talory  v.  Jackson,  Croke  Car.  513; 
Jones  V.  Pope.  1  Saunders'  Rep.  37:  Pease  r.  Howard,  14  Johns.  Rep.  480; 
Uullard  r.  Bell.  1  Mason's  Rep.  243;  CritVm  r.  Ileaton.  2  Baily's  R.  58.  In 
Ward  V.  Ruder.  2  Harr.  &  IMclT.  Rep.  154.  the  court  said:  'An  aition  grounded 
(//(OH  a  statiitf,  cannot  be  barred,  such  as  debt  for  an  escape,  etc'  "  Lane  r. 
Morris   (1851)   10  Ga.  I(i2,  105.    But  see  Harris  r.  Smith    (1882)   68  Ga.  461. 

So  also  the  liability  for  calls  in  a  railway  company.  Cork  &  Bandon  Rway. 
Co.  V.  Goode  (1853)  13  C.  B.  826:  so  also,  the  liability  for  maritime  tolls. 
Shepherd  v.  Hills  (1855)  11  Ex.  55,  per  P.\RKE,  B.  (but  see  Tobacco  Co.  v. 
Lodcr   nS5n    16  Q.  B.  765)  :  Atwond  r.  Bank  (1850)   1  R.  I.  376. 

In  the  following  cases  the  liabilit;^-a£-a-^i«&kh4>hk'r  waa  hcld-to^he-jvithin 


4-i  JONES   V.  POPE.  [book   I. 

JONES  V.  POPE. 

Michaelmas.     King's  Bench,  1667. 

[1  Williams'  Saunders,  37.^] 

Debt  on  an  escape.^ — The  plaintiff  declares  that  he,  on  the  14th  of 
June,  1654,  prosecuted,  out  of  the  then  court  of  the  upper  bench,  a 
writ  of  testatum  capias  ad  satisfaciendum,  against  one  Fabian  Hill, 
directed  to  the  sheriffs  of  the  city  of  Bristol,  whereby  the  sheriffs  were 
commanded  that  they  should  take  the  said  Fabian  Hill,  to  have  his 
body  before  the  late  pretended  Protector  Oliver,  &c.  in  the  upper 
bench  at  Westmitister,  on  Saturday  next  after  one  month  of  St. 
Michael,  to  satisfy  the  plaintiff  of  £1000  debt  and  £7  6d.  costs,  by  force 
of  which  writ  the  defendant  and  one  Thomas  Bull,  then  sheriffs  of  the 
said  city,  afterwards,  to  wit,  on  the  10th  of  August,  in  the  year  above- 
said,  within  the  same  city,  took  the  said  Fabian  Hill  in  execution  for 
the  debt  and  costs  aforesaid,  and  had  him  in  their  custody  until  after- 
wards, to  wit,  on  the  first  of  September,  in  the  year  1654  aforesaid,  the 
said  now  defendant  and  the  said  Bull,  being  then  sheriffs,  let_ihe_said 
Hill  at  large,  and  suffered  him  to  escape,  the  plaintiff  not  being_satis- 
fied  his  debt  ffrKT^sTs,'  and  tKat  afterwards  Bull  died,  whereby  an 
acfion  accrued  to  the  plaintiff  to  demand  and  have  his  debt  of  the 
defendant,  being  the  surviving  sheriff,  yet  the  said,  &c.  The  defendant 
pleads  in  bar,  that  the  plaintiff's  bill  was  exhibited  against  him  on  the 
21st  of  November,  in  the  17th  year  of  the  reign  of  the  now  king,  and 
that  since  the  cause  of  action  accrued,  six  years  and  more  were  elapsed 
before  the  day  of  the  exhibiting  the  said  bill.  And  this.  &c.  Where- 
fore, (Src.    Upon  which  plea  the  plaintiff  demurred  in  law. 

And  Jones,  of  counsel  with  the  plaintiff,  argued  against  the  plea, 
that  an  action  of  debt  for  an  escape  is  not  within  the  statute  of  limita- 
tions of  21  Jac.  1.  c.  16.  For  the  words  of  the  statute  are:  "All  actions 
of  debt,  grounded  upon  any  lending,  or  contract,  without  specialty, 
all  actions  of  debt  for  arrearages  of  rent,  shall  be  brought  within  six 
years,"  &c.  But  he  said,  that  an  action  of  debt  on  an  escape  is  not 
Avithin  the  statute,  for  two  reasons.  First,  because  the  action  is  not 
founded  upon  any  lendinrj  or  contract;  and  the  statute  does  not 
limit  all  actions  of  debt  generally,  but  only  actions  of  debt  founded 
upon  a  lendinq  or  contract  without  specialty;  and  this  is  a  debt  created 
by  the  law  without  any  lending  or  contract,  and  therefore  is  not  limited 

the  Statute  of  Limitations:  Corninp  r.  ISIfC'nlloiiLrli  (1847)  1  N.  Y.  47;  Terry  v. 
Calnan  (1870)  13  R.  C.  220;  Carrol  v.  Groor  (1875)  02  U.  S.  500,  .515,  where 
Billiard  V.  Boll  (1817)  Mas.  24.3,  fiupra,  was  exnressly  disapproved. — Ed. 

'Reported  also  in  1   Sid.  300,  2  Keb.  03.  and  1  Lev.  101.— En. 

^The  latter  part  of  the  opinion  on  another  point  is  omitted. — Ed. 


CHAP.  III.]  JONES  V.  I'oi'i::.  45 

or  restrained  by  the  statute.  Secondly,  he  said,  that  the  action  of  debt 
on  an  escape  is  founded  upon  a  specialty,  namely,  upon  statute  law, 
and  so  out  of  the  statute  of  limitations.  For  at  common  law  no  action 
of  debt  lay  against  a  gaoler  for  an  escape  out  of  execution,  but  only 
an  action  upon  the  case,  as  appears  in  2  Inst.  382.^  Then  the  statute 
of  1  Kic.  2.  c.  12.  gives  to  creditors  an  action  of  debt  against  the 
warden  of  the  Fleet  upon  an  escape  out  of  execution,  and  the  statute 
by  construction  extends  to  all  other  gaolers  and  sheriffs.  And  so  the 
statute  is  a  specialty,  upon  which  the  action  is  founded ;  and  therefore 
it  is  clearly  out  of  the  words  and  intention  of  the  statute  of  limitations, 
which  only  limits  actions  of  .debt  without  specialty.  And  he  further 
said,  that  although  the  words  of  the  statute  of  limitations  are  general, 
as  to  the  limitation  of  all  actions  of  debt  for  arrearages  of  rent,  yet  it 
had  been  adjudged  that  an  action  of  debt  for  the  arrearages  of  rent 
reserved  hy  indenture  was  not  within  the  intention  of  the  said  statute, 
llutton's  Rep.  109.  Freeman  and  Stacie's  case.  And  so,  he  said,  it  had 
been  adjudged  upon  the  statute  of  2  &  3  Ed.  6.  c.  13.  of  tithes, 
that  an  action  brought  upon  that  statute  was  not  within  the  statute 
of  limitations,  because  it  was  founded  upon  a  specialty,  namely,  the 
act  of  Edw.  6.  Cro.  Car.  513.  15  Car.  1.  Talory  and  Jackson's  case. 
And  therefore  he  concluded  the  plea  was  bad. 

Saunders  e  contra.  And  that  the  plea  was  good.  And  he  said,  that 
the  action  of  debt  upon  an  escape  was  within  the  statute  of  limitations, 
because,  although  it  is  not  founded  upon  a  lending  or  contract  properly, 
yet  the  law  has  made  a  contract,  and  the  statute  intends  to  limit  all 
actions  of  debt  founded  upon  a  contract  without  specialty,  and  has 
not  distinguished  between  contracts  in  law  and  in  fact,  but  includes 
all.  And  he  further  said,  that  the  action  is  not  only  founded  upon 
the  statute  of  1  Ric.  2.  but  upon  the  escape,  which  is  a  naked  matter 
of  fact:  for  though  the  statute  and  also  the  judgment  and  writ  of 
execution  are  of  record,  and  so  specialties,  yet  the  escape,  upon  which 
the  action  is  founded,  is  a  mere  matter  of  fact.  For  if  the  action  were 
founded  upon  a  record,  the  defendant  could  not  plead  nil  debet;  for 

"•In  wliicli  oaso  the  creditor  niipht  recover  damages  for  the  oflicer's 
miscoiiducl ;  hut  still  an  action  lay  against  the  original  debtor.  But  the 
statutes  Westminster  2.  and  1  R.  2.  c.  12.  gave  an  action  of  dchi  against  the 
sherifF  or  gaoler  to  recover  at  once  the  sum  for  which  tha  prisoner  was  charged 
in  execution.  These  being  affirmative  statutes  do  not  take  away  the  common 
law  remedy;  so  that  the  creditor  has  still  his  election;  if  he  adopts  the  action 
of  debt,  it  is  said,  that  he  is  entitled  to  recover  the  whole  debt,  and  shei-iff's 
l»oundage;  2  Term  Rep.  129.  Ronafous  r.  Walker,  per  Bii.i.ek.  Justice:  2  H. 
Black.  113.  Alsept  v.  Eyles;  2  Black.  Rep.  1048.  Hawkins  r.  Rlomer:  but  if  he 
brings  an  action  upon  the  case,  he  will  recover  such  damages  as  the  jury  are 
inclined  to  give.  2  Term  Rep.  l.'?2.  Bonafous  r.  Walker;  and  in  this  action 
the  defendant  is  at  liberty  to  plead  the  statute  of  limitations,  as  well  because 
the  action  lay  at  the  common  law.  as  because  the  words  of  the  statute  are 
'all  actions  upon  the  case,'  &c.  1  Sid.  ."JOG."    Williams'  note. 


46  WILSON  &  UX.   V.  TOWLE.  [BOOK    I. 

this  is  no  pica  to  a  specialty;  but  without  doubt  the  defendant  can 
plead  nil  debet.    And  so  it  seemed  to  him  that  the  plea  was  good. 

But  for  the  reasons  of  Jones,  the  court  held  the  plea  bad,  and  that  the 
action  was  not  within  the  statute  of  limitations.^  ~~ 


HODGSON  V.  HAREIS. 

Trinity.     King's  Bench,  1670. 

[1  Levinz,  273.] 

Debt  on  an  Award ;  the  Defendant  pleads  the  Statute  of  Limita- 
tions rOn^whTcFrilTe  Plaintiff  demurs,  because  by  Saunders  it  is  not  a 
Debt  upon  a  Contract  or  Lending  within  the  Words  of  the  Statute: 
To  which  it  was  answered  by  Jones,  That  the  Submission  to  the  Award 
is  a  Contract  to  pay  the  Sum  awarded :  and  cited  3  Cro.  600.  Bowyer 
against  Garland.  The  Court  inclined  to  the  Opinion,  That  it  was  not 
within  the  Statute :  And  Twysden  saidTThat^Deljt  for'liCopyhold 
Fine~tRrd-been  adjudged  not  to  be  within  the  Statute  ;  whereupon  Jones 
offered  to  waive  the  Demurrer  and  go  to  Issue,  which  Saunders  refused; 
and  it  was  adjourned.^ 


WILSOX  &  UX.  V.  TOWLE. 

Superior  Court  of  Judicature  of  Xew  Hampshire,  1848. 

[19  New  Hampshire,  244.] 

Debt.  The  plaintiffs  declared  that  Levi  Towle,  late  of  Epping, 
deceased,  being  seized  in  fee  of  certain  lands  described  in  the  declara- 

'Accord:  Cockram  v.  Welby  (1678)   2  Mod.  212. 

"It  has  been  settled,  that  an  action  of  deht.  for  an  esfnpe  is  nnt  within  the 
statute  of  limitations,  because  it  is  founded,  not  on  any  contra^t^in  fapt,  hut 
on  the  legal  liability  imposed  by  the  statutes  of__V^stminstcr  2  and  1  R.  2.  c.  12, 
which  gave  an  action  of  debt  against  the  sherifl'  or  jailer,  to  recover  the  debt 
for  which  the  prisoner  had  been  committed  to  his  custodj'^  in  execution  of  a 
judgment ;  and  therefore  the  suit  was  founded  on  the  statute  alone,  which 
is  deemed  in  effect  a  specialty.  Jones  r.  Pope,  1  Saunders,  36,  37,  38,  and 
notes;  Hodsden  v.  Harridge,  2  ib.  64,  65,  and  notes,  and  cases  there  cited." 
Hank  of  U.  S.  v.  Dallam  (1836)  4  Dana,  574,  577. 

See  also,  Angell  on  Limitations  (0th  ed.)  79  ct  seq.;  Buswcll  on  Limita- 
tions and  Adverse  Possession,  208  et  scq. ;  Wood  on  Limitations,  sec.  33. — Ed. 

^For  the  history  of  the  subinission  to  an  award  and  the  implied  or  express 
promise  contained  therein,  see  ]\Ir.  Ames  in  2  Harv.  Law  Rev.  62. 

For  the  doctrine  of  tlio  principal  case,  see  Angell,  88;  Buswell,  §  152;  Wood, 
sec.  33  and  notes. — Ku. 


CIIAr.    III.]  WILSOX  &  UX.  V.  TOWLE.  47 

tion,  by  his  last  will  devised  the  same  to  the  defendant  and  his  heirs, 
he,  the  said  Gardner  Tovvle,  paying  the  sum  of  one  hundred  dollars 
as  thereinafter  named;  that  in  and  by  said  will  the  testator  afterwards 
gave  to  his  daughter,  the  said  Pema  Wilson,  fifty  dollars  in  money, 
to  be  paid  by  said  Gardner.  Levi  Towle  afterwards,  on  the  twenty- 
fourth  of  May,  1827,  continuing  so  seized  of  the  lands  described, 
died,  and  his  will  was  admitted  to  probate.  That  the  defendant 
accepted  the  devise,  entered  the  premises,  remained  in  possession 
thereof,  and  thereby  became  chargeable  to  the  said  Pema  to  pay 
her  the  said  sum  of  fifty  dollars,  according  to  the  devise  aforesaid, 
and  the  said  Gardner  still  holds  the  premises,  whereby  an  action  hath 
accrued  to  the  plaintiffs,  &c. 

The  defendant  pleaded,  among  other  pleas,  that  the  supposed  cause 
of  action  did  not  accrue  to  the  plaintiffs  at  any  time  within  six  years 
next  before  the  commencement  of  the  suit. 

To  this  there  was  a  demurrer  and  joinder  therein. 

The  writ  was  dated  the  fourth  day  of  May,  1847. 

Woods,  J.  The  question  raised  by  the  demurrer  does  not  derive 
its  solution  from  the  chapter  of  the  Revised  Statutes  relating  to  the 
limitation  of  suits.  They  had  not  been  in  force  six  years  at  the  time 
this  action  was  commenced,  except  with  respect  to  those  cases  in  which 
the  period  of  limitation  prescribed  by  former  statutes  had  begun  to 
run,  and  the  same  or  a  similar  limitation  is  prescribed  by  the  Revised 
Statutes.  The  inquiry,  therefore,  is  whether  this  action  was  barred, 
or  could  have  been  barred,  by  a  lapse  of  six  years,  by  virtue  of  the 
statute  of  eJune  30,  1825,  which  was  in  force  until  repealed,  with  the 
qualification  before  noted,  by  the  Revised  Statutes,  in  1842. 

The  only  clause  in  that  statute  which  is  supposed  to  affect  this 
action,  is  that  which  limits  to  the  period  of  six  years  next  after  the 
cause  of  such  actions,  "all  actions  of  debt  grounded  upon  any  lending 
or  contract  not  under  seal."  The  act  of  June,  1791,  in  force  previously 
to  that  time,  contains  the  clause  as  it  originally  stood  in  the  statute  of 
21  Jac.  1.  ch.  16,  "all  actions  grounded  upon  any  lending  or  contract, 
without  specialty,"  a  broader  expression  and  comprehending  all  actions, 
it  would  seem,  which  could  possibly  fall  within  the  purview  of  the 
statute  which  has  been  cited  as  governing  this  case. 

There  are  two  cases  in  Saunders  which  deserve  to  be  cited  as  among 
the  earliest  in  which  this  clause  of  the  statute  of  21  Jac.  1.  was 
judicially  drawn  in  question.  The  first  is  Jones  v.  Pope,  1  Saund.  34, 
which  was  debt  against  a  sheriff  of  Bristol,  for  an  escape.  The 
defendant  pleaded  in  bar  that  the  plaintiff's  hill  was  exhibited  against 
him,  on  the  21st  of  Xoveml^er,  in  the  17th  of  the  now  king,  and  that 
since  the  cause  of  action  accrued,  six  years  and  more  were  elapsed 
before  the  day  of  exhibiting  the  said  bill.  The  plaintiff  demurred, 
and  it  was  argued  in  his  behalf  that  the  action  was  not  within  the 
statute,  first,  because  not  founded  upon  any  lending  or  contract,  and 


48  WILSON   &  UX.   V.  TOWLE.  [BOOK    I. 

secondly,  because  it  was  founded  upon  a  statute  which  was  a  specialty, 
the  statute,  namely,  of  1  Kic.  II.  For  the  defendant  it  was  argued 
that,  although  the  action  was  "not  founded  on  a  contract  or  lending, 
properly,  yet  the  law  has  made  a  contract,"  &c.  But  the  court  held 
the  plea  bad,  for  the  reasons  stated  by  the  plaintiff's  counsel. 

The  other  case  referred  to  is  Hodsden  v.  Harridge,  2  Saund.  63, 
which  was  debt  on  an  award  made  by  an  umpire,  under  his  hand  and 
seal,  in  pursuance  of  a  parol  submission.  The  plea  was,  the  statute 
of  limitations,  and  upon  demurrer,  two  points  were  made.  1.  That 
the  award  was  a  specialty.  2.  That  the  case  was  not  one  of  lending 
or  contract.  The  whole  court  were  for  the  plaintiff;  the  Ch.  Justice 
mainly  upon  the  first  point,  Twisden  upon  the  second,  and  the  other 
judges  upon  both. 

The  case  of  Cockram  v.  Welby,  2  Mod.  212,  was  debt  to  recover 
money  of  the  sheriff  of  Lincoln,  levied  by  Fi.  Fa.  It  was  argued  for 
the  defendant,  on  demurrer  to  a  plea  of  the  statute  of  limitations, 
that  when  the  sheriff  had  levied  the  money,  the  law  created  a  contract 
(without  specialty)  on  his  part  to  pay  it  over.  The  judgment  was  for 
the  plaintiff,  however. 

It  lias  likewise  been  held  that  an  action  of  del)t  for  a  legacy  is  not 
barred  by  the  lapse  of  six  years,  not  being  within  the  statute.  Com. 
Dig.  Temps.  15. 

In  Jordan  v.  Eobinson,  3  Shepley,  167,  it  was,  upon  the  same 
grounds,  held  that  a  foreign  judgment  is  not  subject  to  the  statute. 

In  conformity  with  these  decisions,  it  has  been  held  as  a  general 
principle,  that  actions  of  debt  founded  upon  a  contract,  without 
specialty,  are  such  as  are  founded  upon  a  contract  in  fact,  and  not 
created  by  construction  of  law.  Pease  v.  Howard,  14  Johns.  479 ; 
Eichards  i'.  Brickley,  13  Serg.  &  Rawle,  395. 

Finally,  in  the  case  of  Sanborn  v.  Sanborn,  in  this  State,  decided 
in  Rockingham,  July  term,  1845,  the  same  question  here  jpresented 
_arosc  in  an  actjonof  debt,  for  moneycharged  u]^on  jnudbv  a  will. 
It  was  held  upon  demurrer  to  a^p[ea  of  the  statute  of  limitations,  that 
the  case  did  not  fall  within  it.  It  was  not  a  case  of  lending  or 
contract  of  any  kind,  within  the  meaning  of  the  statute. 

T])D.JkiUt  in  this  myp  romltc  frnm  ihn  tenure  of  the  lajjd.  Tt  is  a 
charge  upon  it,  into  whose  hands  soever  thejand  passes  c'^-^^''^^^  ^\y  i^^<^ 
act  of  tlie  owner. "ancrfestmgTfrhoTiist  sense  upon  any  contract,  express 
or  implied.  Although  in  England  this  charge  would  seem  to  be  com- 
monly en1V)roed  in  equity,  yet  it  has  been  held  there  that  debt  would 
lie  against  the  terretenant  for  the  recovery  of  the  money  so  charged. 
Ewer  V.  Jones,  2  Salk.  415;  6  Mod.  25,  S.  C. 

It  is,  indeed,  called  a  del)t,  and  owes  its  inception  to  the  voluntary 
act  of  the  terretenant  or  devisee,  in  accepting  the  devise,  or  a  title 
under  it.  So,  indeed,  does  the  obligation  to  pay  money  resulting  from 
the  violation  of  a  penal  statute,  which  money,  like  this,  is  recoverable 


CHAP.    III.]  PEASE  r.  IIOWAUD.  49 

in  an  action  of  debt,  in  favor  of  a  private  person.     Yet,  in  neither 
case  is  the  debt,  in  any  reasonable  sense,  founded  on  any  contract. 

The  case,  therefore,  does  not  fall  within  the  provisions  of  the  statute 
of  limitations,  and  the  demurrer  must  prevail. 

Judgment  for  the  plaintiffs  on  the  demurrer. 


PEASE  V.  HOWARD. 

Supreme  Court  of  Jurisdiction  of  New  York,  1817. 

[14  Johnson,  479.] 

Van  Ness,  J.,  delivered  the  opinion  of  the  Court.  The  words  of  the 
statute  of  limitations  are,  "that  all  actions  upon  the  case,  &c.,  and  all 
actions  of  debt  for  arrearages  of  rent,  or  founded  upon  any  contract 
without  specialty,  shall  be  commenced  and  sued  within  six  years,  &c." 
Whether  a  justice's  Court  is  strictly  a  Court  of  Record,  it  is  not 
material  to  determine  in  this  case;  for  if  it  be  not,  it  is  settled,  that  a 
judgment  rendered  in  it  is  conclusive  evidence  of  a  debt,  and  the 
merits  of  such  a  judgment,  while  it  remains  in  force,  cannot  be  over- 
hauled or  controverted  in  an  original  suit  at  law,  or  in  equity;  and 
it  is  as  final,  as  to  the  subject  matter  of  it,  to  all  intents  and  purposes, 
as  a  judgment  in  this  Court.  A  foreign  judgment,  being  prima  facie 
evidence  of  the  debt  only,  has  been  considered  as  of  no  higher  nature 
than  a  simple  contract ;  and  a  necessary  consequence  of  this  is  that  the 
statute  of  limitations  may  be  pleaded  to  it.  But  a  judgment  in  a 
justice's  Court  is  of  a  higher  nature  than  a  foreign  judgment,  because 
its  merits  cannot  be  controverted  in  a  srni  founded  upon  it.  In  the  case 
of  Walker  v.  Witter  (Doug.  1),  which  was  an  action  upon  a  judg- 
ment obtained  in  the  Supreme  Court  of  Jamaica,  Lord  Mansfield 
says,  the  question  was  brought  to  a  narrow  point ;  for  it  was  admitted, 
on  the  part  of  the  defendant,  that  indehitatis  assumpsit  would  have 
lain,  and  on  the  part  of  the  plaintiffs,  that  the  judgment  was  only 
prima  facie  evidence  of  the  debt.  "That,"  says  he,  "being  so,  the 
judgment  was  not  a  specialty,  but  the  debt  only  a  simple  contract  debt." 
From  this  it  would  seem  to  follow,  that  if  the  judgment  had  been 
conclusive  evidence  of  the  debt,  it  would  have  been  a  specialty,  and 
that,  of  course,  the  statute  of  limitations  could  not  Inve  been  a  bar. 
This  view  of  the  question  seems  to  derive  great  weight  from  the  nature 
and  effect  of  a  specialty,  which,  being  under  seal,  imports  a  considera- 
tion, and  the  want  of  one  cannot  be  alleged  by  plea ;  this,  and  the 
solemnity  which  attends  the  execution  of  it,  are  the  only  reasons  why 
it  ranks  higher  in  the  scale  of  contracts  than  a  writing  without  seal, 
or  a  mere  parol  agreement.  But  it  may  be  shown,  that  a  specialty 
is  founded  upon  an  illegal  consideration,  and  it  is  not  always  con- 


50  PEASE  V.  HOWARD.  [BOOK   I. 

elusive  evidence.  In  this  respect,  it  is  inferior  to  a  justice's  judgment, 
and  the  solemnities  attending  the  rendition  of  the  judgment  are  equal, 
at  least,  to  the  sealing  and  delivery  of  a  specialty.  A  justice's  judg- 
ment  is  a  debt  of  a  higher  nature  than  a  simple^ contract  debt,  nnrl  is  as 
much  a  specialt'^'^lis'ayudgnient  obtained  in  this  Court,  which,  clearly, 
is  not  barred  by  the~statute  of  limitaTTons^ 

XeitHeFls  a  debt  of  tnis  descHpHcn  within  the  words  of  the  statute ; 
and  every  statute  of  limitations,  being  in  restraint  of  right,  must  be 
construed  strictly.  It  is  not  a  bar  to  every  action  of  debt,  but  only 
to  those  brought  for  arrearages  of  rent,  or  founded  upon  any  contract, 
without  specialty.  It  has  been  held  that  debt  on  an  indenture  reserving 
rent,  is  not  within  the  statute,  notwithstanding  the  generality  of  its 
terms;  (1  Saund.  38)  and  the  settled  construction  of  the  statute  is, 
that  it  applies  solely  to  actinns'Trf-Tfetvrfoundedjippn  contxaxits  in  fact. 
as^'"digtinguTslio]I  froni  those  arising  J3y_construction  of_law.  Now,  in 
this  case  the  action  is  not  founded  upon  a  contract  in  fact.  It  has  been 
held  that  debt  upon  a  recovery  in  trover  or  trespass  in  the  county 
Court  or  Court  baron,  and  in  various  other  inferior  tribunals  in 
England,  is  not  founded  upon  any  contract  in  fact  between  the  parties, 
and,  therefore,  not  barred  by  the  statute.  (2  Saund.  64,  65,  &c..  in 
notes  and  cases  there  cited.)  Such,  too,  is  th§  case  of  an  action  of  debt 
founded  upon  a  statute ;  for  which  this  reason  is  given,  that  a  statute 
is  a  specialty.     (1  Saund.  36,  37,  in  notes.) 

Upon  the  whole,  therefore,  I  conclude,  that  anjiction  of  debt  upon  a 
juj^TueritJri  a  justice's  CouxMsjiot  barrej^by  the  statute~of"triIltta- 
tions_;  1.  Because  aj_sucli-j-udg-meniis  conclusive  evidence  of  the  debt, 
as  has  been  invariably  determined  by  this  Court7~it~is  a  debt  Iiv 
specialtv,  and^iotby  simple  contract  merely,  as  a"^ofeign  judgment  is ; 
and,  2.  B£cause~the  action  is  not  founded  upon  a  contract,  in  fact, 
within  the  meaning  of  the  statute,  and  actions  of  that  dcscription-only 
a're  within  its  words,  and  ittyfc—aretitms'  of'^ebT,' "without  specialty, 
generally. 

Judgment   reversed} 

^"The  judgment  of  a  justice  of  the  peace  or  other  inferior  tribunal  (in  a 
case  where  jurisdiction  of  the  parties  and  subject-matter  appears  from  the 
face  of  the  proceedinpfs) ,  so. Jxirujjis^  jt  remains  unreversed,  is,  for  every  pur- 
pose.  as  bindilig--aJKl  concluoivo-betuu^ui^tlie  parties^as  "thtrt  of  the— hijjhcst 
cottrt-oLjccord  in  the  state.'^  2  IMack  on  Judgments,  §  522,  citing  principal 
case. 

In  Carshore  v.  Huyck  (184!»)  0  P>;trb.  5S.3,  r>HH,  it  is  very  properly  said: 
"It  is  only  since  the  adoption  of  the  revised  statutes  that  justices'  judgments 
have  been  subject  to  the  operation  of  the  statute  of  limitations  (Pease  v. 
Howard,  14  John.  479)." 

See  also,  Angell,  79  et  seq.;  Buswcll,  §§  149-151  and  notes;  Wood,  sees.  30, 
31,  34  and  notes. — Ed. 


CHAP.    III.]  RICHARDS  V.  BICKLEY.  51 

RICHARDS,  ADM'R,  v.  BICKLEY,  ADM'R. 

Supreme  Court  of  Pennsylvania,  1825. 

[13  Sergeant  &  Rawle,  395.] 

Duncan,  J.^  The  plea  of  causa  actionis  non  accrevit  infra  sex 
annos,  was  first  offered  when  the  jury  was  impannelled,  under  the 
act  of  1806.  I  recommended  it  to  the  counsel  to  put  in  the  plea, 
and  on  demurrer,  the  question  whether  in  an  action  of  debt  on  a 
judgment  in  Barhadoes,  which  judgment  was  founded  on  a  specialty, 
as'appearecnjy  tlie  Tteclaration,  the  statute  of  limitations  was  a  good 
plea,  would  be  decided  in  bank.     This  has  been  done. 

r?  this  be  a  defence,  the  adjudged  cases  prove  that  it  may  be  taken 
advantage  of  on  the  plea  of  nil  debet,  but  the  modern  practice  is  to 
plead  it  specially,  the  debt,  as  is  said,  not  being  extinguished,  but 
the  remedy  only  barred.  The  statute  of  limitations  of  James,  so  far 
as  regards  personal  actions,  is  re-enacted  in  our  limitation  act  of 
1713. 

The  action  on  a  foreign  judgment  was  little  known  when  the  statute 
of  limitations  passed,  and  does  not  appear  to  have  been  in  the 
view  of  the  legislature  of  either  country;  and  it  has  been  said  of 
that  statute  that  it  was  not  made  to  extend  to  those  cases  which  seldom 
or  never  happen,  but  to  those  only  which  frequently  happen,  Hutton 
109.  The  first  and  only  case  to  be  found  in  the  English  books 
of  Reports,  in  which  notice  is  taken  of  this  plea  to  a  foreign  judg- 
ment, was  the  case  in  chancery,  of  Dupelin  v.  Roven,  3  Vern.  540, 
and  where  it  was  held  to  be  pleadable,  as  the  Lord  Keeper  said, 
because  the  only  action  that  could  be  maintained  was  indrhiiatus 
n-'isinnpsit  or  insimul  computasset.  Even  so  late  as  the  reign  of  George 
II.,  in  Otway  v.  Ramsey,  2  Stra.  1090,  in  a  writ  of  error,  from 
Ircliind.  the  great  question,  as  it  was  called,  was  whether  debt  would 
lie  there,  on  a  judgment  in  the  Court  of  King's  Bench,  in  England, 
nnd  it  puzzled  the  judges  not  a  little;  for  after  two  solemn  arguments 
upon  A<-hich,  the  court  strongly  inclined  that  it  would  not,  a  third 
argument  was  appointed,  but  the  plaintiff  in  error,  who  was  defen- 
dant, and  had  judgment  against  him  below,  declining  an  argument, 
the  judgment  was  affirmed,  without  any  opinion  delivered  by  the 
court,  further  than  what  was  said  on  the  breaking  of  the  cause,  at 
the  former  argument. 

I  may  repeat,  with  great  confidence,  what  was  said  by  Justice 
BuLLER,  in  Walker  v.  Witter,  in  17TS,  Douglass,  1,  "that  we  meet 
with  no  instance  in  the  books  of  an  action  of  debt  brought  on  a 

'Statement  of  the  case  is  omitted. — En. 


52  RICHARDS  V.  BICKLEY.  [BOOK    I. 

foreign  judgment;"  and  that  was  the  first  instance  in  which  the 
action  had  been  sustained. 

I  only  refer  to  this  case  to  show  how  the  law  stood  anterior  to 
the  American  revolution,  and  to  ascertain  a  point  of  time,  and  not 
as  authority.  The  statute,  it  is  fair  to  suppose,  had  run  in  that  case, 
as  the  judgment  was  in  1766,  the  statute  not  pleaded. 

This  act  of  limitations  is  to  be  construed  as  all  statutes  ought 
to  be,  without  favour  or  disfavour.  Courts  ought  not  to  exclude 
actions  within  its  provisions,  nor  include  those  that  neither  fall 
within  the  letter  or  reason  of  the  law.  Without  saying  whether 
non  assumpsit  infra  sex  annos,  would  or  would  not  be  a  good 
plea,  where  the  action  was  assumpsit,  J^jthinlr  thnf  _iiL_an_  action. 
of  debt  on  a  foreign  judgment,  stating  the  foundation  of  the  judg- 
ment to  be  a  specialty,  the  plea  of  the  statute  is  uotjj^gnod  otiq]  n.nd 
though  the  judgment  be  the  gist  of  the  action,  yet  the  cause  of  the 
judgment  may  be  laid  by  way  of  inducement  in  the  declaration,  as  in 
debt  against  the  sheriff  on  an  escape,  or  in  an  action  founded  on  a 
devastavit  against  an  executor;  the__2udgniaftt4fr-hu^induceny3nt,  the 
escape  and  devastavit  are  the  fouudjitimi  of  the  nr-timi. 
— it  IS  true  It  IS  not  necessary  to  lay  the  cause  of  action  which  gave 
rise  to,  or  was  the  consideration  of  the  judgment,  yet  certainly  it  may 
be  stated;  and  might  under  particular  pleadings  be  material,  and  it 
was  for  some  time  a  moot  point,  even  in  assumpsit  on  a  foreign  judg- 
ment, whether  it  was  not  incumbent  on  the  plaintiff  to  state  the  origi- 
nal cause;  for  in  Crawford  v.  Whittal,  13  Geo.  3,  in  the  note  to  Walker 
V.  Witter,  there  was  a  demurrer  to  such  declaration,  for  the  reason 
that  it  did  not  state  the  ground  of  the  judgment  abroad,  and  the 
cause  of  action  there :  the  demurrer,  however,  was  overruled.  Aston, 
Justice,  said :  "We  are  not  to  suppose  it  was  an  unlawful  debt."  In 
1771,  in  Plaistow  v.  Vanuxem,  it  was  moved  in  arrest  of  judgment, 
for  that  it  did  not  appear  the  judgment  was  given  on  account  of  a  just 
debt,  or  for  any  good  and  sulficient  cause  of  action;  but  the  matter 
was  overruled. 

It  is  said,  that  actions  as  well  of  debt  as  of  assumpsit,  are  debts 
on  simple  contract  and  therefore  within  the  words  of  the  statute. 
The  words  arc,  "All  actions  of  debt,  grounded  on  any  lending  or 
contract  without  specialty."  If  it  had  been  all  actions  of  debt, 
without  specialty,  this  action  would  have  been  included ;  but  all 
actions  of  debt  without  specialty,  are  not  limited,  but  those  only 
grounded  on  a  lending  or  contract,  and  this  action  is  not  founded 
on  any  lending,  and  therefore  not  limited,  though  it  be  without 
specialty.  All  actions  of  debt  are  founded  on  contracts  in  deed  or 
in  law;  and  if  it  had  been  intended  to  limit  all  actions  of  debt 
generally,  the  words  "grounded  on  any  lending  or  contract"  would, 
have  been  superfluous.  But  the  statute  was  only  intended  to  limit 
those  actions  which  are  grounded  upon  any  lending  or  contract  in 


CHAP.    III.]  RICHARDS  V.  BICKLEY.  53 

fact,  and  the  word  Iciuliiig  explains  the  word  contract  to  be  of  the 
same  nature;  and  as  early  as  20  Car.  2.,  this  construction  was  put 
on  these  words  in  Hodsden  v.  llarridgc,  2  Saund.  65,  and  this  principle 
has  ever  since  prevailed.  It  was  the  construction  of  the  English 
statute  when  our  act  passed.  The  use  of  cases  is  said  to  be,  to  establish 
principles,  and  if  the  cases  decide  difterently  from  the  principle,  we 
must  follow,  as  judges  often  have  declared,  the  principle  and  not  the 
decision. 

That  ease  was  debt  on  award  for  the  sum  awarded.  The  award  itself 
was  under  seal,  though  the  submission  was  by  parol,  and  held  not  to 
be  a  contract  within  the  statute;  though,  if  the  action  had  been 
assumpsit  to  stand  to  the  award,  it  had  been  within  it;  but  the  case 
was  not  decided,  as  has  been  supposed  in  the  argument,  on  the 
ground  of  the  award  being  under  seal,  for  there  it  w^as  contended,  and 
so  decided  by  the  court,  that  if  there  had  been  no  specialty  at  all,  yet 
it  was  not  an  action  founded  on  a  contract;  for  the  statute  only 
restrains  and  limits  actions  on  a  lending  or  contract  in  fact,  and 
this  action  is  founded  on  a  debt  quasi  ex  contractu,  as  the  civilians 
term  it,  where  the  law  gives  an  action  of  debt,  though  there  is  no 
contract  between  the  parties.  This  doctrine,  as  to  parol  awards,  has 
been  adopted,  and  is  considered  as  settled  law  from  that  day  until 
BaUcntine  published  his  treatise  on  the  statute  of  limitations,  and 
never  has  been  contradicted  either  by  the  decision  or  the  dictum  of  any 
judge,  or  douI)ted  in  the  speculations  of  any  lawyer. 

One  would  suppose,  that  as  the  actions  on  foreign  judgments  would 
increase  the  commerce  of  the  country,  the  case  of  limitations  must 
liave  frequently  occurred,  yet  no  such  plea  is  to  be  found,  except  in 
this  one  solitary  case,  and  there  sustained  on  a  reason  that  no  longer 
exists,  namely,  that  only  the  action  of  assumpsit  could  be  maintained, 
and  for  this  reason  alone,  the  statute  was  pleadable.  In  all  the  books 
of  practice  and  treatises  on  the  law,  this  solitary  case  has  passed 
unnoticed,  except  by  Mr.  Archhold,  who  notices  it  under  the  title 
of  assumpsit,  and  the  operation  of  the  statute  of  limitations  on  that 
form  of  action.  The  actions  of  debt  without  specialty,  to  which  the 
statute  does  not  apply,  are  numerous:  they  will  be  found  in  the  last 
London  edition  of  Comvn's  Digest,  7th  vol.  p.  415 ;  and  they  will  all  be 
found  to  depend  on  this  one  principle,  of  the  action  not  being 
grounded  on  a  lending  or  contract  in  fact,  or  a  contract  having  rela- 
tion to  a  record.  Debt  on  escape  against  sheriff,  debt  on  award,  debt 
for  a  copyhold  fine,  debt  on  the  statute  for  not  setting  out  tithes,  debt 
against  sheriff  for  money  levied  on  a  fieri  facias,  debt  against  an 
attorney  for  money  received  by  him  :  so  if  we  are  to  confine  the  act  to 
the  enumerated  actions,  it  does  not  fall  within  any  of  the  denomina- 
tions of  actions;  it  is  neither  trespass,  nor  detinue,  nor  trover,  nor 
replevin,  nor  action  of  account,  nor  on  the  case,  nor  debt  grounded 
on  any  lending  or  contract;  but  an  action  of  debt  on  a  foreign  judg- 


54  RICHARDS   I'.  BICKLEY.  [BOOK   I. 

inent  is  no  more  a  debt  on  a  contract  in  deed,  than  debt  on  a  domestic 
judgment,  and  if  one  has  obtained  a  Judgment  against  another  for 
a  certain  sum,  and  neglect  to  take  out  an  execution,  he  may  after- 
wards bring  an  action  of  debt  on  tliis  judgment;  he  shall  not  be  put 
to  proof  of  the  original  cause  of  action,  but  on  showing  the  Judg- 
ment in  full  force,  the  law  immediately  applies,  that  by  the  original 
contract  of  society,  he  has  contracted  a  debt  or  is  bound  to  pay  it. 
So  that  the  obligation  arises  from  an  iinplied  original  contract  with 
snciptyj  and  not  with  the  individual,  like  forfeitures^in5}'-laws,  amerce- 
ments,  judgments  recovered  for  a  tort  in  an  inferior  court,  penalties, 
inflicted  by  law,  damages  given  by  statute  to  the  party  grieved ; 
these  immediately  create  a  debt  in  the  eye  of  the  law,  3  Bl.  160 ;  but 
they  do  not  fall  under  the  denomination  of  actions  of  debt  grounded 
on  a  lending  or  a  contract.  It  is  not  necessary  to  decide  how  this 
would  be,  on  a  count  on  the  implied  contract  to  pay  the  Judgment 
in  the  action  of  assumpsit.  Yet  there  would  seem  to  be  a  sound 
difference  between  that  action  and  debt,  where  the  party  has  his 
choice^  of  remedies,  as  assumpsit  for  not  performing  an  award  ajid 
debt  Oil  the  award,  the- statute  may  hejpteaded ^  to  the~one  form  of 
action  and  not  to  the  other.  So  the  creditor  has  his  election  for 
~C9cape  on  Judicial  process :  he  may  bring  debt  where  the  statute  will 
not  apply,  or  he  may  bring  case  where  it  will.  So,  in  the  action  for 
money  received  against  the  sheriff,  as  in  Cochran  v.  Welby,  1  Mod. 
245 :  action  on  the  case  against  the  sheriff,  for  that  he  levied  a  sum  of 
money  and  did  not  bring  it  into  court  on  the  return  of  the  writ, — plea 
of  the  statute  of  limitations  and  demurrer,  and  the  distinction  was 
taken  between  assumpsit  and  case,  and  it  was  admitted  that  if  it 
had  been  assumpsit,  the  statute  would  be  pleadable,  S.  C.  2  Mod.  212; 
and  the  question,  on  that  report  of  the  case,  is  said  to  have  been. — 
whether  the  action  was  barely  grounded  on  the  contract,  or  had  relation 
to  or  was  founded  on  a  record.  And  in  action  of  debt,  brought  by 
the  same  plaintiff  against  the  same  defendant,  it  was  held  that  the 
action  lay  before  the  return  of  the  writ.  Yet  the  action  is  not  within 
the  statute  of  limitations ;  for  though  it  be  not  a  record  before  the 
return  of  the  writ,  yet  it  is  founded  on  a  record  and  has  a  strong 
relation  to  it.  2  Show.  79.  So,  here,  though  the  action  is  not  immedi- 
ately founded  on  a  specialty,  yet  it  has  a  strong  relation  to  it;  and 
there  seems  to  be  a  prevailing  opinion  (though  I  admit  it  has  been 
questioned  by  some),  that  where  the  whole  of  a  l)ond  has  been  paid 
by  one  of  the  obligors,  who  brings  an  action  of  assumpsit  for  contri- 
bution, that  he  would  be  allowed  the  same  limitation  as  on  the  bond 
itself. 

It  is  not  unworthy  of  remark,  that  it  was  supposed  that  actions  on 
promissory  notes,  which  in  some  measure  partake  of  the  nature  of 
specialties,  particularly  in  the  manner  of  declaring  on  them,  were 
not  within  the  statutes  of  21  Jac.  1 ;  for  by  statute  3  and  4  Anne,  c.  9, 


CHAP.    III.]  RICHARDS  V.  BICKLEY.  55 

s.  2,  it  was  provided,  that  actions  on  promissory  notes  shall  he  hronght 
within  the  time  appointed  for  commencing  actions  on  the  case  hy  that 
statute.  Note  to  Hodsden  v.  Harridge,  2  Wms.  Saund.  66.  And  that 
much  depends  on  the  form  of  action,  as  to  the  operation  of  the  statute, 
appears  by  what  was  said  in  giving  tlie  opinion  of  the  court  in  Beattie's 
Administrators  v.  Burns,  9  Cranch,  107.  It  was  a  question  on  the  bar 
of  the  statute  of  limitations  in  an  action  for  money  had  and  received, 
brought  under  an  act  of  asseml)ly  of  Maryland,  respecting  some  local 
provisions  as  to  lands  within  the  District  of  Columhm,  and  it  was, 
as  Mr.  Justice  Story  said,  "a  case  where  the  action  for  money  had  and 
received  was  clearly  within  the  act;  but  it  was  contended  that  the 
present  suit,  being  a  statute  remedy,  was  not  within  the  purview  of 
the  statute  of  limitations.  We  know  of  no  difference  between  a 
common  law  and  a  statute  right,  each  must  be  pursued  according  to  the 
general  rules  of  law,  unless  a  different  rule  be  prescribed  by  the  statute ; 
and  where  the  remedy  is  limited  to  a  particular  form  of  action,  all 
the  general  incidents  of  that  action  must  attach  upon  it." 

It  is  to  be  observed,  as  to  Dupelin  v.  Eoven,  that  the  origin  of 
the  debt  was  simple  contract;  the  foreign  judgment  did  not  change 
it, — it  still  retained  that  ground,  and  composition  and  note  given 
in  1676,  and  bill  not  filed  for  thirty  years  after, — from  the  length 
of  time  equity  would  presume  all  to  have  been  satisfied  without 
recourse  to  the  statute  of  limitations.  This  appears  to  me  as  very 
clear;  for  the  presumption  of  payment  of  a  foreign  judgment,  un- 
less repelled  by  circumstances,  would  prevail  at  the  end  of  twenty 
years,  as  it  does  in  cases  of  legacies,  mortgages,  and  all  specialties, 
though  not  falling  within  the  provisions  of  any  statute.  But  the 
cases  from  5  and  11  Johns.  Kep.,  cited  by  the  counsel  for  the  defend- 
ant, weigh  much  more  with  me:  they  are,  however,  decided  without 
argument,  and  without  reference  to  any  direct  authority  except  the 
case  in  Yernon,  or  to  any  analogous  principles;  and  it  certainly  was 
decided  on  a  mistaken  view  of  the  constitution  of  the  United  States, 
as  to  the  nature  of  a  judgment  in  a  sister  state.  Andrews  v.  Mont- 
gomery, 12  Johns.  173. 

The  case  of  Pease  v.  Howard,  14  Jolms.  149,  decided  that  a  judg- 
ment in  a  justice's  court  was  not  within  the  statute  of  limitations ; 
for  it  was  not  like  a  foreign  judgment,  but  it  formed  conclusive 
evidence  of  the  debt,  and  is  not  therefore  a  debt  by  simple  contract, 
but  by  specialty;  yet,  at  the  same  time,  it  is  observable,  that  it  was 
not  decided  on  that  ground  alone,  but  on  an  acknowledged  principle, 
which  pervades  in  the  construction  of  all  actions  of  debt,  without 
specialty,  "that  the  actions  of  debt,  founded  on  any  contract  without 
specialty,  which  are  barred  by  the  act  of  limitations,  are  only  actions 
of  debt  founded  on  a  contract  in  fact,  and  not  such  debts  as  are 
created  by  the  construction  of  law." 

This  last  reason  leads  to  the  certain  conclusion,  that  actions  of 


56  WOODS  V.  AYRES.  [BOOK  I. 

(lpM_nri  forpicrn  jiirlgnipnta  are  iiot_within  the  limitation, — as  they 
are  neitlier  within  the  words  or  intention  of  the  legislature.  They 
afe^not  grouncti'-d  on  a  lending  or— en  a  contract,  in  the  _sense  in 
which  that  word  is  used  in  the  act;  for  that  is  a  contract  created 
hy  a  construction  of  law, — the  action  of  debt  limited  is  on  a  lending 
or  contract  in  fact  or  in  deed. 

The  case  in  5  and  11  Johns.  Rep.  have  not  been  considered  with 
that  deep  research  for  which  the  judges  of  that  court  were  so 
highly  distinguished  ;  and,  with  the  greatest  deference  to  those  eminent 
men,  these  decisions  appear  to  me  to  be  at  variance  with  principle, 
and  with  a  principle  acknowledged  in  the  subsequent  case  of  Pease  v. 
Howard :  a  principle  which  fixes  a  general  construction,  without  any 
exception, — a  general  rule,  that  knows  no  distinction.  The  court 
therefore  direct  judgment  to  be  entered  for  the  plaintiff. 

Judgment  for  the  plaintiff.^ 


2.    SET-OFF  AND   COUNTERCLAIM,  ATTACHMENT   AND  ARREST   IN 
QUASI-CONTRACT. 


WOODS  V.  AYRES. 

Supreme  Court  of  Michigan,  1878. 

[39  Michigan,  345.] 

Error  to  Huron.    Assumpsit. 

Graves,  J.-    In  the  fall  of  1871,  a  claim  in  favor  of  the  firm  of 

'Accord:  Jordan  v.  Robinson  (1838)  15  Me.  167.  On  theory  the  principal 
case  would  seem  to  be  correct  and  unanswerable,  but  the  autliorities  are  in 
accord  with  Dupleix  v.  De  Eovon  (1705)  2  Vern.  540,  ante.  The  law  is  stated 
in  Black  on  judgments    (§  850)    as  follows: 

"It  is  well  settled  that  the  statute  of  limitations  of  the  country  of  the 
forrner  may  be  pleaded  in  bnr  of  n TT~nr^ti on  nn  n -frrrf4fm--jwl^nTTrT]y!  This  fol- 
lows  necessarily  from  the  doctrine  that  such  judgments  are  not  records. 
For  if  they  possess  no  higher  character  than  simple  contract  debts,  it  is 
obvious  that  they  must  be  barred  by  the  same  period  of  limitation,  which  is 
that  of  the  lex  fori." 

"The  statute  of  limitations  of  the  state  of  the  forum  may  be  pleaded  in 
defence  to  an  action  on  a  judgment  of  a  sister  state,  if  the  statute  is  so 
framed  as  to  include  judgments.  .  .  .  The  statute  of  limitations  is  available 
as  a  defence  only  against  the  judgment,  not  against  the  original  cause  of 
action"  {ib.  §  802). 

"In  most,  if  not  all,  of  the  states  the  statutes  of  limitation  either  expressly 
prescribe  a  period  within  which  suits  on  judgments  nnist  be  brought,  or  are 
so  framed  as  to  include  such  actions  by  necessary  implication"  {ib.  §  985, 
citing  cases). — Ed. 

-Only  that  part  of  the  opinion  is  given  relating  to  the  question  of  the 
plea  of  set-off  and  the  nature  of  quasi-contracts. — Ed. 


CHAP,    III.]  WOODS  V.  AYRES.  67 

Ayres,  Learned  &  Wiswall  arose  against  plaintiffs  in  error  for  four 
dollars  per  thousand  feet  upon  a  quantity  of  pine  saw  logs  delivered 
by  the  linn  to  plaintiffs  in  error  under  an  agreement  for  their  delivery 
subject  to  that  drawback,  to  replace  others  the  firm  had  cut  on  lands 
of  the  plaintiffs  in  error. 

Second.  Plaintiffs  in  error  offered  to  gfmw  liy  \vny__nfspt-nff  a 
dojuiind  in  their  favor  for  moving  certain  lo^-s  of  ^^Vyrcs,  Learned  & 
W i swair'  in  the  Pinnepog  river  in  the  season  of  1871  pursuant  to  the 
act  of  1861  as  amended  in  1863  to  regulate  the  "floating  of  logs  and 
timbers  in  the  streams  of  this  State"  (Sess.  L.  1863,  p.  374)  :  and  a 
further  demand  in  their  favor  for  moving  logs  of  "Ayres,  Learned  & 
Co."  in  the  same  river  in  the  season  of  1872  and  pursuant  to  the  same 
law.  L'pon  objection  by  defendants  in  error  the  court  ruled  against 
the  offer. 

Assuming  that  all  the  conditions  were  present  to  generate  a  liability 
under  this  statute,  were  the  demands  enforceable  under  the  set-off  law? 
If  they  were  not,  the  ruling  was  correct.  In  order  to  decide  upon  this 
it  is  necessary  to  consider  of  what  nature  the  demand  is  on  which  this 
statute  impresses  the  right  of  enforcement,  and  whether  the  statute 
of  set-off  fairly  comprehends  it. 

'rhe_jight  ol- set-off  at  law  is  g-iven  and  li'mUprl  by  atntntp.  The 
common  law  never  recognized  it.  Bac.  Ab.  tit.  "Set-off."^  The  pro- 
"visions  concerning  set-off  mustTherefore  be  consulted  to  see  in  what 
cases  and  in  what  circumstances  the  right  is  admitted.  Unless  a  case 
is  positively  embraced  by  the  specifications  enacted  by  the  Legislature, 
the  remedy  is  al)solute]y  denied  and  the  claim  will  remain  to  be  sepa- 
rately enforced  as  though  there  were  no  such  statute. 

^"At  common  Imv,  if  the  ])laintifl"  was  as  much,  or  even  more  indebted  to 
the  defendant  than  the  defendant  was  indebted  to  him,  yet  he  had  no  method 
of  striking  a  bahince;  the  only  way  of  obtaining  relief  was  to  go  into  a  court 
of  equity.  To  remedy  this  in  convenience  it  was  enacted  by  the  statvite  of  2  G. 
2,  c.  22,  §  13,  'That  where  there  are  mutual  debts  between  the  plaintiff 
and  defendant,  or  if  either  party  sue  or  be  sued  as  executor  or  administrator, 
where  there  are  mutual  debts  between  the  testator  or  intestate,  and  either 
party,  one  debt  may  be  set  against  the  other;  and  such  debt  may  be' given  in 
evidence  on  the  general  issue,  or  pleaded  in  bar,  as  the  nature  of  the  case  shall 
require,  so  as  at  the  time  of  pleading  the  general  issue,  where  any  such  debt 
of  the  plaintiff,  his  testator  or  intestate,  is  intended  to  be  insisted  on  in 
evidence,  notice  shall  be  given  of  the  particular  sum  or  dvht  intended  to  be 
insisted  on,  and  upon  what  account  it  bwame  due;  otherwise  such  matter  shall 
not  be  allowed  in  evidence  upon  the  general  issue.*  "  8  Bacon's  Abridgment 
(Bouvier's   edition),   040. 

For  the  origin,  nature  and  judicial  construction  of  the  statutory  set-olT,  see 
Collins  V.  Collins  (1759)  2  Burr.  820;  Green  v.  Farmer  (170^)  4  Burr.  2214, 
jier  Lord  Mansfield,  C.  J.;  and  see  Waterman  on  Setoff,  Recoupment,  and 
Counterclaim,  10  ct  scq.;  II.  Kent's  Com.  13th  ed.  *473  n  (h)  ;  Sedgwick, 
Measure  of  Damages,  c.   xvii. — En. 


58  WOODS  V.  AYRES.  [BOOK   I. 

Now  the  firsLpT'p-^fqnisitfijmJCTthe  law  allowing  set-off  is  that  the 
demand  has  arisen  "upon  judgment,  or  upon  contract  express  or  im- 
plied^  (Co"mp".Xi.,  §  579G,  subd.  1),  and  unless  it  has  originated  in  one 
of  these  ways  it  is  incapable  of  being  set  off.  The  demands  in  question 
did  not  arise  on  judgment  or  upon  express  contract.  So  much  may  be 
taken  for  granted.  If  then,  they  were  capable  of  being  set  off,  it  must 
be  because  they  arose  on  implied  contract.  Did  they  originate  in  that 
way  ?  The  question  is  not  whether  they  constituted  assumpsits  in  some 
metaphorical  or  artificial  sense, — whether  under  the  license  allowed  in 
modern  times  in  applying  forms  of  action  they  might  not  be  sued  in 
assumpsit, — but  it  is  whether  in  the  sense  of  the  statute  of  set-off  they 
were  causes  of  action  on  true  implied  contract. 

In  early  times  the  want  of  a  common  law  remedy  suited  to  cases  of 
non-performance  of  simple  promises  caused  frequent  recourse  to  equity 
for  relief;  but  at  length  in  the  21st  of  Henry  VII  it  was  settled  by  the 
judges  that  an  action  on  the  case  would  lie  as  well  for  non-feasance 
as  for  malfeasance,  and  in  that  way  assumpsit  was  introduced.  In 
theory  it  was  an  action  to  recover  for  non-performance  of  simple  con- 
tracts and  the  formula  and  proceedings  were  constructed  and  carried 
on  accordingly.  Very  early  there  were  successful  efforts  to  apply  it 
beyond  its  import,  and  from  the  reign  of  Elizabeth  "this  action  has 
been  extended" — as  Mr.  Spence  informs  us — "  'conscience  encroaching 
on  the  common  law' — to  almost  every  case  where  an  obligation  arises 
from  natural  reason,  and  the  just  construction  of  law,  that  is,  quasi 
ex  contractu;"  and  is  now  maintained  in  many  cases  which  its  prin- 
ciples do  not  comprehend  and  where  fictions  and  intendments  are 
resorted  to,  to  fit  the  actual  cause  of  action  to  the  theory  of  the  remedy. 
It  is  thus  sanctioned  whore  there  has  been  no  actual  assumpsit — no 
real  contract — but  where  some  duty  is  deemed  sufficient  to  justify  the 
court  in  imputing  a  promise  to  perform  it  and  hence  in  bending  the 
transaction  to  the  form  of  action.  1  Spence  Eq.  Jur.  243,  244,  245 ; 
Hosmer  i'.  Wilson,  7  Mich.  294;  Ward  v.  Warner,  8  id.  508;  Watson  v. 
Stever,  25  id.  386,  and  other  eases  in  this  court. 

This  tendency  to  apply  assumpsit  to  causes  of  action  foreign  to  its 
original  spirit  and  design  is  apparent  in  our  legislation.  The  statute 
allows  it  to  bo  brought  on  judgments  and  sealed  instruments  (Comp. 
L.,  §  6194),  also  for  penalties  and  forfeitures  (§  6841),  and  by  com- 
missioners of  highways  for  expenses  laid  out  on  bridges  required  to 
be  maintained  by  private  parties  (§  1311).  There  are  other  instances 
in  the  laws. 

The  arbitrary  use  which  has  been  made  of  the  action  has  caused 
many  incongruities  and  no  little  confusion.  The  practice  of  strained 
constructions  and  the  invention  of  fictions  and  intendments  to  subject 
causes  of  action  to  the  remedy  which  were  foreign  to  it,  has  led  some- 
what to  a  confounding  of  transactions  which  are  not  contracts  with 
those  which  are  and  to  a  neglect  of  obvious  and  necessary  distinctions. 


CHAP.    III.]  WOODS  V.  AYUES.  59 

But  it  may  be  observed  in  passing  that  it  is  not  the  only  occasion  where 
inaccuracies  have  been  generated  by  a  too  close  adherence  to  the  plan 
of  studying  causes  of  action  through  the  forms  of  action.  Thf  circnip- 
stance  that  a  cause_o£jij[;tinn  in  point  of  factjtot  ex  contractu  is  allowed 

to  be  sued  in  jissinTi|)sit  «^id  jn  \m  dc^nrilwrl  aa  yyinttpr  of  mntract^and 
to'  be  loosely  spoken  of  as  implied  contract  isof  no  more  force  to  fix 
its  actual  character  contrary "toThc-truth  thainsnTe~atlegation  Of  loss 
and  finding  in  trover  to  convey  the  sense  of  a  literal  loss  and  finding. 
Permission  to  apply  the  action  to  a  transaction  not  involving  any  real 
contract  relation  between  the  parties  cannot  change  the  true  nature  of 
the  transaction  and  transform  it  into  matter  of  contract.  Courts  cannot 
make  contracts  for  parties.  And  the  fictions  and  intendments  per- 
mitted for  the  sake  of  the  remedy  are  explainable  whenever  necessary. 
It  seems  scarcely  necessary  to  add  that  the  determination  by  a  major- 
ity of  the  court  (Chapman  v.  Keystone  &c.  Co.,  20  Mich.  358)  that  the 
party  moving  logs  as  contemplated  by  the  first  section  of  the  act  of 
1861  as  amended  in  1863,  acquires  a  distinct  right  of  action  against 
the  log  owners  enforcible  in  assumpsit,  is  of  no  force  whatever  to  show 
that  such  a  demand  arises  on  implied  contract. 

T^pithpr  an  pvprpsa  pnnt.rnnf  nnr  nno  hy  impliontinn   nnn   rnvnp  into 

existence_ualesa_thc-  parties  sustain  contract  rplntirins!^  imd  thp  difFpr- 
ence  between  the_twQ-iar-ms  oonoiats  in  the  mode  uf  subijliiiitiation  kYid 
not  in  the  nature  of  the  thing  itself.  Marzetti  v.  Williams,  1  B.  &  Ad. 
415;  Bcirne  v.  Dord,  1  Seld.  95.  To  constitute  either  the  one  or  the 
other  the  parties  must  occupy  towards  each  other  a  contract  status,  and 
there  must  be  that  connection,  mutuality  of  will  and  interaction  of 
parties,  generally  expressed  though  not  very  clearly  by  the  term 
"privity."  Without  this  a  contract  by  implication  is  quite  impossible. 
Broom's  Com.  on  Com.  L.  317;  Broom's  Phil,  of  Law,  18.  23,  24,  25, 
29,  34;  1  Austin's  Juris.  325,  326;  2  id.  946,  948,  1018.  Cases  in 
illustration  are  numerous.     Blandy  v.  DeBurgh,  6  C.  B.  634. 

Where  there  is  a  spontaneous  service  as  an  act  of  kindness  and  no 
request,  or  where  the  circumstances  account  for  the  transaction  on  some 
ground  more  probable  than  that  of  a  promise  of  recompense,  no 
promise  will  be  implied.  The  contract  connection  is  not  established. 
Bartholomew  v.  Jackson,  20  Johns.  28;  James  v.  O'Driscoll,  2  Bay. 
101 ;  St.  Jude's  Church  v.  Van  Denberg,  31  Mich.  287;  Livingston  v. 
Ackeston,  5  Cow.  531;  Nicholson  v.  Chapman,  2  H.  Black.  254; 
Smart  v.  Guardians  of  the  Poor,  36  E.  L.  &  E.  496;  Otis  v.  Jones, 
21  Wend.  394.  396;  Ehle  v.  Judson,  24  Wend.  97:  Ingraham  v.  Gil- 
bert, 20  Barb.  151  ;  Eastwood  r.  Kenvon,  11  Ad.  and  El.  438;  Hertzog 
V.  Hertzog,  29  Penn.  St.  465 ;  LangeV.  Kaiser,  34  :Mich.  317. 

The  parties  must  be  consenting  bargainers  personally  or  by  delega- 
tion, and  their  coming  together  in  contract  relation  must  be  manifested 
by  some  intelligible  conduct,  act  or  sign.  If  not,  no  contract  is  shown. 
Depperman  v.  ITubbersty,  33  E.  L.  &  E.  88;  Gerhard  r.  Bates,  20  E. 


60  WOODS  V.  AYRES.  [BOOK    I. 

L.  &  E.  129;  Williams  v.  Everett,  14  East,  583,  597,  598;  Exchange 
Bank  of  St.  Louis  v.  Rice,  107  Mass.  37;  Mellen  v.  Whipple,  1  Gray, 
317;  Pipp  V.  Reynolds,  20  Mich.  88;  Turner  v.  McCarty,  22  Mich. 
265 ;  Ashley  v.  Dixon,  48  N.  Y.  430 ;  Merrill  v.  Green,  55  N.  Y.  270 ; 
Simson  v.  Brown,  (58  N.  Y.  355 ;  Strong  v.  Phoenix  Ins.  Co.,  62  Mo. 
289;  Bank  of  Republic  v.  Millard,  10  Wall.  152;  First  National  Bank 
of  Washington  v.  Whitman,  94  IT.  S.  343 ;  Starke  v.  Cheescman,  1  Ld. 
Raym.  538;  Keller  v.  Holderman,  11  Mich.  248;  Van  Valkenburg  v. 
Rogers,  18  Mich.  180;  Cundy  v.  Lindsay,  38  L.  T.  Rep.  (N.  S.)  573; 
Plills  r.  Snell,  104  Mass.  173^  177 ;  Boston  Ice  Co.  v.  Potter,  123  Mass. 
28;  Sullivan  v.  Portland  &c.  R.  R.  Co.,  94  U.  S.  806.  The  privity 
essential  to  a  contract  must  proceed  from  the  will  of  the  parties.  There 
may  be  a  privity  by  operation  of  law  where  no  privity  of  contract 
exists.    4  Bouvier's  Inst.,  No.  4237. 

Before  leaving  this  part  of  the  discussion  it  will  be  useful  to  quote 
somewhat  liberally  from  the  instructive  opinion  of  Mr.  Justice  Lowrie, 
in  Hertzog  v.  Hertzog  supra.  After  a  citation  from  2  Blackstone's 
Comm.  443,  the  opinion  proceeds. 

"There  is  some  looseness  of  thought  in  supposing  that  reason  and 
justice  ever  dictate  any  contracts  between  parties,  or  impose  such 
upon  them.  All  true  contracts  grow  out  of  the  intentions  of  the  parties 
to  transactions,  and  are  dictated  only  by  their  mutual  and  accordant 
wills.  When  this  intention  is  expressed,  we  call  the  contract  an  express 
one.  When  it  is  not  expressed,  it  may  be  inferred,  implied,  or  pre- 
sumed, from  circumstances  as  really  existing,  and  then  the  contract, 
thus  ascertained,  is  called  an  implied  one.  The  instances  given  by 
Blackstone  are  an  illustration  of  this.  But  it  appears  in  another  place, 
3  Comm.  159-166,  that  Blackstone  introduces  this  thought  about 
reason  and  justice  dictating  contracts,  in  order  to  embrace,  under 
his  definition  of  an  implied  contract,  another  large  class  of  relations, 
which  involve  no  intention  to  contract  at  all,  though  they  may  be 
treated  as  if  they  did.  Thus,  whenever,  not  our  variant  notions  of 
reason  and  justice,  but  the  common  sense  and  common  justice  of  the 
country,  and  therefore  the  common  law  or  statute  law,  impose  upon 
any  one  a  duty,  irrespective  of  contract,  and  allow  it  to  be  enforced  by 
a  contract  remedy,  he  calls  this  a  case  of  implied  contract.  Thus  out 
of  torts  grows  the  duty  of  compensation,  and  in  many  cases  the  tort 
may  be  waived,  and  the  action  brouglit  in  assumpsit. 

"It  is  quite  apparent,  therefore,  that  radically  different  relations 
are  classified  under  the  same  term,  and  this  must  often  give  rise  to 
indistinctness  of  thought.  And  iliis  was  not  at  all  necessary;  for  we 
have  another  well-authorized  technical  term  exactly  adapted  to  the 
oflico  of  making  the  true  distinction. 

"The  latter  class  are  merely  constructive  contracts,  whilst  the  former 
are  truly  implied  ones.  In  (^ne  case  the  contract  is  mere  fiction,  a  form 
imposed  in  order  to  adapt  the~oapr'-t?T  n--giv(!U  remedy  ;  in  l.1it^,^thor  it  is^ 


CIIAl*.    III.)  WOODS  ('.  AY HES.  61 

a  fact_ legitimately  infacied.  In  one,  the  intention  is  disregarded;  in 
the  other,  it  is  ascertained  and  enforced.  In  one,  the  duty  defines  the 
contract;  in  the  other,  the  contract  defines  the  duty.  We  have,  there- 
fore, in  law  three  classes  of  relations  called  contracts. 

"First.  Constructive  contracts,  which  are  fictions  of  law  adapted  to 
enforce  legal  duties  by  actions  of  contract,  where  no  proper  contract 
exists,  express  or  implied. 

"Second.  Implied  contracts,  which  arise  under  circumstances  which, 
according  to  the  ordinary  course  of  dealing  and  the  common  under- 
standing of  men,  show  a  mutual  intention  to  contract. 

"Third.  Express  contracts,  already  sulliciently  distinguished." 

Further  on  it  is  also  observed  that  "every  induction,  inference,  impli- 
cation, or  presumption  in  reasoning  of  any  kind,  is  a  logical  conclusion 
derived  from,  and  demanded  by,  certain  data  or  ascertained  circum- 
stances. If  such  circumstances  demand  the  conclusion  of  a  contract  to 
account  for  them,  a  contract  is  proved ;  if  not,  not." 

We  may  now  turn  to  the  statute  under  which  the  liability  sought  to 
be  set  off  arose  and  on  which  it  depends.  It  is  part  of  the  first  section 
of  the  act  and  provides  "that  if  any  person  or  persons  shall  put,  or 
cause  to  be  put,  into  any  navigable  river,  creek  or  stream  of  this  State, 
any  logs,  timber  or  lumber,  for  the  purpose  of  floating  the  same  to  the 
place  of  manufacture  or  market  and  shall  not  make  adequate  pro- 
visions, and  put  on  sufTicicnt  force  for  breaking  jams  of  such  logs, 
timber  or  lumber,  in  or  upon  such  river,  creek  or  stream,  or  for 
running  or  driving  the  same,  or  clearing  the  banks  of  such  river,  creek 
or.  stream  of  the  same,  and  shall  thereby  obstruct  the  floating  or  navi- 
gation of  such  river,  creek  or  stream,  it  sliall  be  lawful  for  any  other 
person,  company  or  corporation,  floating  or  running  logs,  timber  or 
lumber  in  such  river,  creek  or  stream  so  obstructed,  to  cause  such 
jams  to  be  broken,  and  such  logs,  timber  or  lumber  to  be  run,  driven 
and  cleared  from  the  banks  of  such  river,  creek  or  stream,  at  the  cost 
and  expense  of  the  person  or  persons  owning  such  logs,  timber  or 
lumber,  and  such  owner  shall  be  liable  to  such  person,  company  or 
corporation  for  such  cost  and  expense."    Laws  of  1863,  p.  374. 

Now  the  liability  or  cause  of  action  here  ordained  and  described  is 
not  to  arise  on  contract, — is  not  to  spring  from  any  compact  or  privity 
of  agreement  or  any  coming  together  of  the  parties  under  any  contract 
relation,  or  on  the  footing  or  in  any  view  of  any  agreement.  -Ihe 
owner  of  tlie  logs  is  to  becornp  liable  without  any  regard  to  his  will  or 
his  assent  to  the  acts  and  things  for  which  IreTrfTT^t-prriy: — His  aiT^ssu^n 
tOtrrr  tiaris.icliuii  is  Jiot  contemplated.-  He  is  Ut  tJecome  debtor  to  a 
party  with  whom  he  has  never  had  any  contract  relation  whatever. 
The  statute  simply  imposes  the  duty  to  pay  for  services  \y\vr']-,  ^vitLnnf 
thg^rovision,  would,  as  being  services  purely  voluntary,  be  not  recover^ 
ablfijnany  way  or  form. 


62  GORDON  V.    BRUNER.  [BOOK  I. 

No  case  is  presented  to  raise  an  inference  or  cause  an  implication 
tliat  there  was  a  contract.  The  demand  arises  upon  statute,  that  is, 
upon  a  duty  which  the  statute  originates,  and  has  no  place  in  the  law 
of  contracts.  The  liability  belongs  to  that  class  Mr.  Justice  Lowrie 
calls  "constructive  contracts,"  and  which  the  civilians'  denominate 
"quasi  contracts,"  meaning  transactions  in  which  the  parties  make  no 
agreement  whatever,  but  on  which  the  law  grounds  specific  obligations. 
Poth.  on  Obligations,  Pt.  I.,  ch.  1,  sec.  2. 

If  the  demand  set  up  in  this  case  should  be  considered  as  arising  on 
contract  within  the  meaning  of  the  set-off  law  it  will  be  very  difficult 
to  draw  the  line. 

The  conclusion  on  this  part  of  the  case  is  that  they  did  not  so  arise 
and  hence  were  not  lawful  matters  of  set-off.  In  regard  to  set-off  the 
right  is  tied  down  by  the  statute  to  demands  arising  on  contract,  but 
assumpsit  is  not  so  confined,  but  is  allowed  an  expansive  application  to 
cases  which  do  not  arise  on  contract. 

The  other  Justices  concurred.^ 


GOEDON  V.  BRUNER. 

Supreme  Court  of  Missouri,  1872. 

[49  Missouri,  570.] 

Bliss,  Judge,  delivered  the  opinion  of  the  court. 

In  an  action  upon  a  promissory,  note  for  $1,000,  the  defendant,  by 
way  of  counterclaim,  sought  to  set-off  or  recoup  the  value  of  a  crop 
of  corn  taken  by  the  plaintiff  from  his  farm.  It  appears  that  the 
Tjlaintiff  conveyed  the  iavm  to  th(^  (l('f(MKlant  without  reserving  the 
growing  crops,  and  afterward  luirvcstcij  a  crop  of  corn~w1llioul"*]iis 
consent.  It  also  appears  that  plaintiff  is  a  non-resident,  and  Tmtcss 
theTIeTendant  can  recover  in  this  manner  he  is  without  present 
remedy. 

Under  the  statutory  term  "countor-elaim"  is  included  what  was 
before  known  as  a  matter  of  set-off  and  recoupment,  and  it  is  admitted 
that  damages  for  a  trespass  cannot  be  set  off  against  a  contract.  Our 
statute  in  regard  to  counter-claims  makes  no  change  in  this  regard 
in  the  law  as  it  existed  before.     Hence,  luU^ss  the  liability  for  taking 

'Rut  soo,  Allon  r.  U.  S.  (1872)  17  Wall.  207;  Kotlischild  v.  Mack  (1889) 
11.')  N.  Y.  1;  KI  Paso  Nat.  Bank  v.  Fuchs  (1890)  89  Tex.  197;  Gould  v. 
Baker  (189(;)  12  Tex.  Civil  App.  fiOH ;  Fanson  v.  Linsley  (1878)  20  Kas.  23.5; 
Hail  Road  Co.  v.  Phelps  (1890)  4  Kas.  App.  139;  Challiss  v.  Wylie  (1880) 
3.5  Kas.  506,'  Andrews  v.  Artisans'  Bank  (1863)  26  N.  Y.  298;  Ever.sole  v. 
Moore  (1867)  3  Bush  49.— Ed. 


CHAP.    III.]  GORDON  V.  BRUNER,  63 

the  corn_can  be  treated  as  arising  on  contract,  the  deferf^fjTif  fnnnnt 
a V aiL hmficLLof  it  as  a  set-off  projicr. 

It  is,  1  believe,  not  disputed  that  when  there  is  a  conversion  of 
personal  property ,_  and  that  property  has  been  sold  and  converted 
into  money,  the  owner  may  ratify  the  sale  by  suing_  the  jzrongdoer 
as  for  money  had  and  received  for  his  use.  But  where  the  property 
htrs"not  been  sold  but  still  remains  in  the  hands  of  the  wrongdoer, 
thefe-ts-ditference  of  Opinion,  and  there  have  been  conflicting  decisions 


uposnEe^  question  whether  the  owner"  may  waive  the  tort  an3~sue  as 

tor  goods  sold  and  delivered.  " ' 

. — tfl  MaL^f^ttchngctts^  in  Jones  v.  Hoar,  5  Pick.  285,  to  which  there 
is  a  note  to  a  former  opinion,  reviewing  the  English  cases,  it  was 
held  that  no  contract  could  be  implied  unless  the  goods  were  sold 
and  converted  into  money;  and  the  same  doctrine  was  held  in 
Pennsylvania  in  Willett  v.  Willett,  3  Watts,  277,  and  in  "Morri- 
son V.  Eogers,  2  111.  317.  But  such  has  not  been  the  uniform 
ruling.  In  Putman  v.  Wise,  1  Hill.  X.  Y.,  the  court  holds  (p.  240) 
that  "according  to  the  well-known  right  of  election  in  such  cases,  the 
])laintiffs  might  have  brought  assumpsit  as  for  goods  sold  and  delivered 
against  those  who  had  tortiously  taken  their  property."  To  this  the 
reporter,  Mr.  Hill,  adds  a  note  reviewing  the  cases,  and  disapproves 
the  doctrine  of  Jones  v.  Hoar.  See  Hill  v.  Davis,  3  N.  H.  384;  Stock- 
ell  t'.  Watkins'  Adm'r,  2  Gill  &  J.  326,  there  cited. 

The  question  was  early  brought  before  this  court,  and  it  was 
distinctly  hold  that  the  owner  of  personal  property  may  bring  an 
action  as  upon  contract  against  ^  tort  feasor.  Floyd  v.  Wiley,  1  Mo. 
430.  "It  does  not  lie  in  the  mouth  of  defendant,"  says  the  court, 
"to  say  that  he  is  a  trespasser."  The  same  case  was  again  heard 
(id.  643),  and  the  doctrine  affirmed  by  it  was  also  acknowledged  in 
Johnson  v.  Strader,  3  Mo.  359. 

It  may  bo  treated,  then,  as  the  doctrine  in  this  State,  that  one  who 
has  converted  to  his  own  use  the  personal  property  of  another,  when 
sued  for  the  value  of  that  property  as  sold  to  him,  will  not  be  per- 
mitted to  say  in  defence  that  ho  ol)tained  it  wrongfully. 

The  distinction  between  set-ofl'  and  recoupment  is  now  important 
only  from  the  fact  that  the  former  must  arise  from  contract,  and  can 
only  be  used  in  actions  founded  upon  contract;  while  the  latter  may 
spring  from  a  wrong,  provided  it  arose  out  of  the  transaction  set 
forth  in  the  petition,  or  was  connected  with  the  subject  of  the  action. 
The  answer  may  be  somewhat  ambiguous  as  to  whether  the  pleader 
intended  to  set  up  his  claim  as  a  set-off  or  by  way  of  recoupment. 
1  f  the  former,  it  should  have  alleged  a  sale  of  the  corn ;  and  tliough 
the  defendant  might  deny  the  sale  and  ownership  of  the  plaintiff,  he 
could  not  rlefond  by  showing  that  he  was  a  tort  feasor.  If  the  latter, 
it  should  show  that  the  act  complained  of  was  "connected  with  the 
sul)ject  of  the  action  ;"  and  although  before  the  adoption  of  the  code 


64  FIRST  NAT'l  bank  of  NASHUA  V.  VAN  VOORIS.  [BOOK    I. 

it  could  only  go  to  reduce  the  amount  of  the  claim,  a  defendant  now 
may  recover  any  balance  found  to  be  his  due,  as  well  by  recoupment 
as  set-off.     Hay  v.  Short,  aiite,  149. 

In  Grand  Lodge  v.  Knox,  20  Mo.  433,  it  is  held  that  one  who  is 
sued  for  the  purchase-money  of  land  may  recoup  damages  arising 
from  the  removal  of  fixtures  by  the  seller.  The  defendant  charges 
that  the  note  sued  on  was  given  for  the  purchase-money  of  land,  that 
the  growing  crop  passed  the  deed,  and  that  the  plaintiff,  without 
his  consent,  removed  the  crop,  and  he  seeks  to  recover  the  value  of  the 
crop  so  removed.  Wp  fhinV  Jie  is  entitled  to  do  so  by  way  of  recoup- 
ment, and  even  if  the  answer  were  ambiguous,  it  should  not  have  been 
FtricJcenTout,  but  made  more  definite,_  For  the  error  of  the  court  in 
striking  it  out,  the  judgment  should  be  reversed. 

I  see  no  necessity  for  the  application  made  to  the  equity  side  of  the 
court,  and  the  questions  raised  by  such  application  will  not  be  con- 
sidered. The  cause  will  be  remanded  for  trial  under  the  counter- 
claim.    The  other  judges  concur.^ 


FIEST  NATIONAL  BANK  OF  NASHUA  v.  VAN  VOOKIS. 

Supreme  Court  of  South  Dakota,  1895. 

[6  South  Dakota,  548.] 

Kellam,  J.  This  is  an  appeal  from  an  order  of  the  circuit  court 
of  Brookings  county  discharging  an  attachment.  The  leading  question 
in  the  case  is  whether,  within  the  meaning  of  our  attachment  law,  a 
judgment  of  a  sister  state  is  a  contract,  without  regard  to  the  character 
of  the  original  cause  of  action  "^vhich  entered  into  it.  The  difficulty 
is  not  to  find  direct  adjudications  upon  the  general  question  of  whether 
a  judgment  is  or  ought  to  be  classed  as  a  contract,  for  they  are  almost 
numl:)erless  on  both  sides  of  the  question.  The  embarrassment'  is  to 
determine  which  Ijne  of  thesc_p^ases.  so  squarely  opposed  to  ear-b  nth(,^rj 
is  most  securely  grounded  upon  good  reason,  and  most  likely  to 
result  in  its  practical  application  in  the  most  good  and  the  least 
harm.  Although  some  elementary  law  writers,  and  some  courts  whose 
learning  is  so  great  and  whose  judgment  is  so  nearly  infallible  as  to 
almost  foreclose  further  inquiry,  have  declared  judgments  to  be  con- 
tracts, and  have  so  classed  them,  it  is  very  obvious  that  ordinarily  they 
lack  tlie  clement  of  consent,  which  is  generally  named  as  the  very 

•A  later  decision  of  the  same  court,  Sandcen  v.  Kansas  City,  etc.  H.  R.  Co. 
( 1883)  79  Mo.  278,  refused  to  allow  assumpsit  where  the  goods  had  not  actually 
been  sold. 

Sec  Starr  Cash  Co.  v.  Rcinhardt   (1892)   20  N.  Y.  Supp.  872,  post.— Kd. 


CHAP.    III.]     FIRST  NAT'l  BANK  OF  NASHUA  r.  VAX  VOORIS.  65 

life  and  spirit  of  a  contract.  It  would  look  pedantic,  and  probably 
serve  no  useful  purpo.se,  to  undertake  in  this  oi)inion  to  rewrite  the 
learning  found  in  the  opinions  of  other  courts,  and  in  the  books  of  the 
text  writers,  upon  this  question  of  tlic  contract  character  of  a  judg- 
ment. A  very  l)rief  e.\aniination  of  the  subject  demonstrates  the  fact 
that  the  most  learned,  careful  and  thou<,ditful  jud<res  and  lawyers  have 
reached  directly  opposite  conclusions.  In  Black  on  Judgments  (vol- 
ume 1  sec.  7  et  seq.)  are  marshaled  a  large  number  of  these  conflicting 
decisions.  In  Louisiana  v.  Mayor,  etc.,  of  New  Orleans,  109  U.  S, 
285,  3  Sup.  Ct.  211,  the  judges  of  the  federal  supreme  court  could 
not  agree  that  a  judgment  was  or  was  not  a  contract.  It  seems  to  me, 
however,  that,  even  if  a  judgment  is  not  a  contract  in  a  broad  and 
unqualified  sensed  it  does  not  necessarily  follow  that  a  foreign  JucTg- 
ment  cannot  be  the  basis  of  an.  attachmee^r  This  must  depend  upon 
the  interpretation  to  be  given  to  the  expression,  "action  arising  on 
contract,"  as  used  in  the  attachment  law.  The  original  office  of 
the  attachment  was  to  secure  the  collection  of  debts.  The  relation 
of  debtor  and  creditor  must  exist.  It  could  not  be  u.sed  in  actions 
for  wrongs  or  torts.  In  some  of  the  states  this  scope  of  the  proceed- 
ing has  been  enlarged  so  as  to  include  in  some  states  specified,  and 
in  others  all,  actions  in  tort.  Actions  at  law  are  fundamentally  and 
logically  divided  into  two  classes, — "actions  ex  contractu"  and  "actions 
ex-del icto," — though  those  express  terms  are  not  employed  in  the  stat- 
ute. Everybody  knows  what  these  terms  mean,  and,  wdiile  the  legis- 
lature seemed  to  prefer  English  words,  we  are  inclined  to  think  that 
they  used  this  expression,  "actions  arisiiig_Qii-£aatraet,^i-as-tlia_cqui£a- 
lent  of  ''actions  ex  contractu,"  just  as  they  sul)stituted  "claim  and 
delivery"  for  "replevin."  Xow,  while  it  may  se*-m-  essentially  .can- 
tradictory  to  say  that  an  action  brought  on  something  wdiich  is_not 
ITcbntract  is  an  action  ex  contractu,  or  an  "action  arising  on  contract," 
sjtiirwhaL  we  sO(ik  is  to  know  what  kind  of  anVctTon  the  legislature 
meant  when  they  relerred  m  tlieir  attachment  law  to  an  '^action  arising 
oiTcontract.^ — It  seems  to  us  that  the  thought arrd  purpose  of  this^fst 
paragraph  of  the  attachment  law  was  to  declare  in  what  general  class 
of  actions  an  attachment  would  lie.  It  was  a  declaration  of  the  pur- 
pose and  policy  of  the  attachment  law  of  this  state  as  to  what  general 
class  or  kind  of  actions  might  be  aided  by  attachment.  By  the  statutes 
of  some  of  the  states,  attachments  were  allowed  in  any  action  for  the 
recovery  of  money.  Sometimes  both  classes  were  expressly  named, 
as  in  Georgia,  where  it  was  available  "in  all  cases  of  money  demands, 
whether  arising  ex  contractu  or  ex  delicto."  In  others  the  remedy  was 
confined  to  actions  "on  contract,  express  or  im]ilied ;"  "actions  on 
contract ;"  "actions  arising  on  contracts,"  etc., — all  meaning,  as  we 
think,  that  general  class  of  actions  known  in  legal  nomenclature  as 
"actions  ex  contractu."  Subsequent  provisions  are  sup]ilementary. 
and  define  particularly  the  further  conditions  that  must  exist  to  justify 


66  FIRST  XAT'l  bank  of  NASHUA  V.  VAN  VOORIS.  [BOOK:   I. 

the  issue  of  the  attachment.  The  general  condition  announced  in  the 
beginning  is  that  the  action  must  be  of  that  class  known  as  "actions 
on  contracts"  as  distinguished  from  "actions  for  torts."  Actions  on 
judgments  form  a  very  common  class  of  actions,  and  have  always  been 
brought  as  ex  contractu  actions,  and  not  as  tort  or  ex  delicto  actions. 
O'Brien  v.  Young,  95  N.  Y.  431;  Louisiana  v.  Mayor,  etc.,  of  New 
Orleans,  supra;  Johnson  v.  Butler,  8  Iowa,  535.  This  is  not  because 
judgments  are  essentially  and  absolutely  contracts,  but  because  the 
obligation  imposed  by  them  is  more  in  the  nature  of  a  contract  liability 
than  a  tort  liability.  It  seems  much  the  same  in  character  as  the 
liability  of  an  infant  to  pay  for  necessaries.  The  judgment  against 
him  does  not  rest  upon  his  contract  liability,  for  he  is  not  required 
to  pay  what  he  promised  or  agreed  to  pay,  but  simply  what  it  is  right 
for  him  to  pay,  and  yet  his  liability  is  regarded  and  classed  as 
contractual. 

We  are  inclined  to  regard  a  judgment,  not  as  a  contract,  but  as  a 
quasi  contract,  which  the  legislature  and  the  courts  have  treated  as  a 
contract  in  respect  to  the  remedy  by  sul)sequent  action  upon  it;  and 
so,  as  before  suggested,  the  question  whether,  under  our  statute,  an 
attachment  may  issue  in  an  action  on  a  judgment  depends  upon  the 
sense  in  which  the  legislature  used  the  expression,  "action  arising  on 
contract."  If  used  in  an  ^xact  and  literal  sense,  an  actioir~bn  a 
judgment  would  not,  in  our  opinion,  be  included ;  but_if__usedin  a 
general  an3"' leading  sense,  to  ith^ugiTTsFlietTrvntLnf  nnp  fOnss  from 
thoie'of  the'7)ther,Tlien  tTTe  expression  must_be  presumed  toliavc  been 
ifeed  iuTiew^of  the  common  understanding  and  practice  that  actions 
on  ;iudgments  were  actions  on  contract.  XThinlc  the  same  meaning 
was  intended  here,  as  by  the  same  words  in  section  4915,  providing 
that  a  cause  of  action  "arising  on  contract"  may  be  pleaded  as  a 
counterclaim.  I  think  there  could  be  little  doubt  that  an  existing 
judgment  might  under  this  provision  be  pleaded  as  a  counterclaim. 
This  point  was  directly  ruled  in  Taylor  v.  Root,  43  N.  Y.  335,  where 
it  was  held  that  in  an  action  on  contract,  a  judgment  in  an  action 
of  slander  could  be  set  up  as  a  counterclaim  for  the  reason  that,  within 
the  meaning  of  that  provision,  it  was  a  cause  of  action  arising  on 
contract.  In  Wyman  v.  Mitchell,  1  Cow.  316,  and  McCoun  v.  Eailroad 
Co.,  50  N.  Y.  176,  and  O'Brian  v.  Young,  95  N.  Y.  428,  all  New  York 
eases,  it  was  distinctly  said  that  a  judgment  was  not  a  contract ;  and 
yet  in  Nazro  v.  Oil  Co.,  36  Hun.  296,  and  again  in  Gutta-Percha  & 
Rubber  Manuf'g  Co.  v.  Mayor,  etc.,  108  N.  Y.  276,  15  N.  E.  402, 
reversing  46  Hun.  237,  it  was  held  that  an  action  on  a  judgment  was 
one  on  "a  contract  express  or  inii)lie(l,"  within  the  meaning  of  the 
attachment  law.  and  the  riglit  to  attacliincnt  was  in  each  case  sustained. 
In  the  latter  case  the  court  said :  "In  a  suit  upon  a  binding  judgment, 
whether  foreign  or  domestic,  the  plaintiff  must  therefore  be  entitled  to 
the  same  provisional  remedies  to  which  he  would  be  entitled  in  an 


CHAP.    III.]    FIRST  XAT'l  IJAXK  of  NASHUA  V.  VAX  VOOUIS.  67 

action  upon  a  contract  express  or  implied."  Upon  the  same  line  the 
supreme  court  of  North  Carolina  said  that,  while  judgments  were 
not  treated  as  contracts  for  all  purposes,  they  wore  so  treated  for  the 
purpose  of  distinguishing  them  from  causes  of  action  ex  delicto,  and 
that  they  were  not  included  in  a  statute  covering  causes  of  action  "not 
arising  out  of  contract."  See  Moore  v.  Nowell,  94  N.  C.  2G5.  In 
Johnson  v.  Butler,  2  Iowa,  353,  an  attachment  was  issued  on  an 
action  on  a  judgment.  Their  attachment  law  prescribes  a  different 
procedure  in  an  action  "founded  on  contract''  from  that  in  an  action 
"not  founded  on  contract."  The  question  was  as  to  which  class  the 
action  belonged.  The  court  said:  "The  distinction  is  manifestly 
between  actions  ex  contractu  and  ex  delicto, and  it  was  always  so  under- 
stood and  so  acted  upon.  *  *  *  The  Code  does  not  recognize  the 
common-law  technical  names  of  action,  nor,  in  this  case,  even  the  gen- 
eral classification  of  those  upon  contract  and  those  of  tort,  in  express 
and  technical  terms;  still  the  sense  cannot  be  mistaken."  The  Wis- 
consin supreme  court  in  Childs  v.  Manufacturing  Co.  (Wis.)  32  N.  W. 
43,  discussed  the  question  whether  an  action  on  a  judgment,  as  one 
arising  on  "contract  expressed  or  implied,"  could  be  joined  with  an 
action  for  the  breach  of  an  express  contract,  and  said:  "When  we 
consider  the  object  of  section  2647,  we  think  it  very  clear  that  the 
legislature  intended  to  use  the  word  'contract'  in  said  subdivision  in  its 
largest  sense,  and  not  in  a  restricted  sense.  The  ol)ject  of  the  section, 
as  a  whole,  is  to  classify  causes  of  action  with  reference  to  their  joinder 
in  one  and  the  same  action.  *  *  *  In  this  view  of  the  subject,  not- 
withstanding the  fact  that  in  other  parts  of  the  statute,  and  for  other 
purposes,  the  legislature  seems  to  have  made  a  distinction  between 
'contracts'  and  'judgments,'  that  fact  furnishes  no  good  reason  for 
holding  that  in  said  section  2647  the  word  contract  was  not  intended 
to  be  used  in  its  larger  meaning,  so  as  to  cover  a  case  of  a  judgment 
for  the  payment  of  money."  Against  this  enlarged  interpretation  of 
the  expression  "actions  arising  on  contract,"  so  as  to  include  an  action 
on  a  judgment,  it  is  urged  that  the  legislature  of  at  least  one  of  the 
states,  Nebraska,  did  not  so  use  or  understand  it.  for  they  thought  it 
necessary  to  expressly  add  "judgment  or  decree"  to  "debt  or  demand 
arising  upon  contract."  There  is  certainly  some  force  in  this,  but  the 
argument  is  of  the  same  character  as  it  would  be  to  urge  that  under 
our  law  an  attachment  would  lie  in  an  action  for  a  breach  of  promise 
to  marry,  because  in  New  York  it  was  thought  necessary  to  except  such 
actions  from  those  on  "contract,  express  or  implied;"  and  our  legis- 
lature has  not  made  such  exception,  thus  indicating,  as  the  argument 
would  be,  that  they  intended  to  allow  attachments  in  such  cases.  We 
do  not  think  the  fact  in  either  case  or  the  inference  therefrom,  is 
potent  enough  to  control  our  conclusion  as  to  the  proper  interpretation 
of  our  law.  WlijleJIip  question  i>;  not  enti rely: jime -from  cmbarra^s- 
ment,  we  conclude  that  an  action  on  a  judgment  i£an  "action  arising 


68  PEOPLE  V.  SPEIR.  [book    I. 

(mcon tract," jvithin  the  meaning  of  that  expression  as  used  in  our 
attachment  law,  and  tliat  this  is  so  whether  the  original  cause_of 
action  which  entered  into  the  judgment  was  one  on  contract  or  tort. 
This^view  necessitates  the  conclusion  that  the  court  erred  in  dis- 
charging the  attachment  on  the  ground  that  the  action  was  not  one 
arising  on  contract,  and  the  order  appealed  from  is  reversed.  All  the 
judges  concur.^ 


THE  PEOPLE  ex  rel.  CHARLES  DUSENBURY,  APPELLANT  v. 
GILBERT  M.  SPEIR  AS  JUSTICE,  ETC.,  RESPONDENT. 

Court  of  Appeals  of  New  York,  1879. 

[77  New  York  Reports,  144.] 

Appeal  from  order  of  the  General  Term  of  the  Supreme  Court,  in 
the  first  judicial  department,  affirming  upon  certiorari,  proceedings 
under  the  non-imprisonment  act  (chapter  300,  Laws  of  1831),  by  and 
before  defendant  as  justice  of  the  Supreme  [Superior]  Court,  which 
resulted  in  the  issuing  of  a  warrant  for  the  arrest  of  the  relator. 

The  facts  appear  sufficiently  in  the  opinion. 

Danforth,  J.  In  the  course  of  supplementary  proceedings  insti- 
tuted by  judgment  and  execution  creditors  of  Selah  Hiler,  William  S. 
Kiely  was  appointed  receiver  of  the  property,  etc.,  of  the  judgment 
debtor,  and  as  such  commenced  an  action  in  the  Superior  Court  of 
the  city  of  New  York,  against  Selah  Hiler,  Charles  Dusenbury,  George 
W.  Lane,  as  chamberlain  of  the  city  of  New  York,  and  others.  It 
appears  from  the  complaint  that  at  the  time  of  his  appointment  there 
was  an  action  pending  in  favor  of  Hiler  against  certain  parties,  in 
which  a  considerable  sum  of  money  had  been  obtained  and  placed  in 

'Where  a  statute  provides  for  attachment  in  actions  on  contracts  express 
or  implied,  ajdijterence  of  opinion  cxistTli sTo  wh oTIior ~Y¥ "sliould  issiie  i n 
actions  quasi  ex  contractu.  On  strict  throiy,  iimlor  llie  aiiahigy  of  the  statu- 
'liiiy    iiihTJiM'liiliitiii    ii|i[ili((1   to  the   statute,  nf  IJTnifntinng,    spf-ofTs.   counter- 


tory   in 
claims 


( see  cases  on  these  .subjects,  stipra),  and  jiulgiii£jits,  Black.  Judgments, 
§11,  unless  the  statute  expressly  provides  for  quasi-contract  actions,  an  at- 
tachment shou](liioFl)e~p?n7rTttte^  so  holdT  Jjabcock 
v.'Hnggs  (W1)  .5-i  Cal.  M)i;  P\Wi\t'M]\Tn  Hank  v.  TurhTey  (1836)  TMiles,  312. 
But^there  seems  to  he  a  growirigtendency  among  courts  to^grant  an  at- 
tachment  in  quasi-contract  actions  oven  under  such  statutes.  Farmers'  Nat. 
Bank~i;.  FoM'X  [l»WJ-)  Gr^  Wuh.  53.'>-r-RTweiri^.  Martin  (1850)  .S2  Vt.  217; 
Nethery  v.  Belden  (1889)  Of>  Miss.  490;  El  Paso  Nat.  Bank  v.  Fuchs  (1896) 
89  Tex.  197,  approved  and  distinguished  in  Gould  v.  Baker  (1896)  12  Tex.  Civ. 
Ap.  669.     And  see,  Drake,  Attachments,  c.  II. — Ed. 


CHAP.    III.]  PEOPLE  V.   SPEIR.  69 

the  hands  of  Lane  as  chamberlain,  to  the  credit  of  the  action,  and 
payment  of  the  same  to  Ililer  was  forbidden  by  injunction;  that 
afterwards  Ililer,  with  the  fraudulent  intent  of  obtaining  possession 
of  the  money,  and  preventing  it  from  coming  to  the  hands  of  his 
creditors,  and  with  intent  to  violate  the  injunction  order,  claimed  that 
the  money  had  been  previously  assigned  by  him  to  Dusenbury,  in  trust 
for  the  benefit  of  certain  creditors  of  Hiler;  that  Dusenbury,  with 
knowledge  of  this  injunction,  induced  Lane  to  pay  the  money  to  him 
as  such  trustee;  that  the  assignment  under  which  Dusenbury  made 
the  claim  was  fraudulent  and  void  as  against  creditors,  and  the  plain- 
tiff as  receiver;  and  the  prayer  was  that  the  assignment  be  declared 
fraudulent  and  void,  and  the  plaintiff  have  judgment  against  each 
defendant,  payable  out  of  the  money  received  l)y  him.  Issue  was 
joined,  and  the  trial  court  found,  and  decided  among  other  things, 
"that  the  defendants  Hiler  and  Dusenbury,  with  the  fraudulent  intent 
and  purpose  of  obtaining  possession  of  said  money,  or  of  transferring 
and  disposing  of  the  same,  and  preventing  it  from  coming  to  the 
hands  of  creditors,  and  with  full  knowledge  of  said  injunction  order, 
and  with  the  intent  to  violate  it,  procured  by  fraud  an  order  from 
the  court,  requiring  the  chamberlain  to  pay  to  Dusenbury  as  trustee 
the  money  so  deposited  with  him.  That  it  was  so  paid  to  him  as 
trustee.  That  no  assignment  was  in  fact  made  to  Dusenbury  as 
trustee  or  otherwise;  that  he  was  not  individually  or  as  trustee  entitled 
to  it;  that  he  wrongfully  and  fraudulently  procured  possession  of  the 
same,  and  judgment  was  entered  as  stated  in  the  affidavit  hereinafter 
referred  to. 

After  the  recovery  of  this  judgment,  the  plaintiff  upon  the  affidavit 
of  his  attorney,  to  which  was  attached  a  copy  of  the  judgment  roll  in 
the  action  alcove  referred  to,  applied  to  the  respondent  for  a  warrant 
for  the  arrest  of  the  relator,  under  the  provisions  of  the  act  of  1831 
(chapter  300)  "to  abolish  imprisonment  for  debt,  and  to  punish  fraud- 
ulent debtors."  Upon  the  return  of  the  warrant  a  hearing  was  had, 
and  the  relator  discharged.  The  General  Term  of  the  Supreme  Court 
reversed  the  determination  of  the  magistrate,  and  upon  a  rehearing, 
the  respondent,  following  the  rulings  of  that  court,  convicted  the 
relator,  and  he  removed  the  proceedings  to  the  Supreme  Court,  where 
Iboy  were  affirmed,  and  from  the  order  of  that  court  the  relator  has 
appealed.  The  first  question  to  be  examined  relates  to  the  juris- 
diction of  the  officer  who  issued  the  warrant.  His  authority  in  this 
case  was  not  absolute.  It  depended  upon  the  existence  of  certain  facts. 
He  was  required  by  the  statute  from  which  he  derived  his  authority 
to  have  proof  of  these  facts,  and  the  same  statute  declared  that  he 
sliould  not  issue  a  warrant  without  that  proof,  which  is  there  pre- 
scribed, and  thus  made  indispensable  to  the  exercise  of  his  autiiority. 
His  jurisdiction,  and  its  limitation  depend  upon  the  provisions  of  the 
act  above  referred  to.    Under  those  provisions,  no  person  can  lawfully 


70  PEOPLE  V.  SPEIR.  [book  I. 

be  arrested  or  imprisoned  on  any  civil  process,  issuing  out  of  any  court 
of  law,  or  on  any  execution  issuing  out  of  any  court  of  equity  in  any 
suit  or  proceeding  instituted  for  the  recovery  of  any  money  due  upon 
any  judgment  or  decree  founded  upon  contract,  or  due  upon  any 
contract  express  or  implied,  or  for  the  recovery  of  any  damages  for 
the  non-performance  of  an}"-  contract.  (Section  1.)  But  in  such 
cases  it  is  made  'lawful  for  the  plaintiff''  who  shall  have  obtained 
Judgment  against  such  person,  to  apply  to  any  judge  of  the  court  in 
which  such  suit  is  brought  for  a  warrant  to  arrest  the  defendant 
therein.  (Section  3.)  Then  follow  these  words  of  prohibition:  "No 
such  warrant  shall  issue,  unless  satisfactory  evidence  be  adduced  to 
him  by  the  affidavit  of  the  plaintiff,  or  of  some  other  person,  that 
there  is  a  debt  or  demand  due  to  the  plaintiff  from  the  defendant, 
amounting  to  more  than  tift}'^  dollars,  and  specifying  the  nature  and 
amount  thereof,  as  near  as  may  be,  for  which  the  defendant  accord- 
ing to  the  provisions  of  this  act  cannot  be  arrested  or  imprisoned," 
and  establishing  one  or  more  particulars,  which  are  specified,  but 
•which  do  not  become  at  present,  material  in  this  inquiry.  We  are  thus 
met  at  the  outset  with  the  question,  whetlier  the  judgment,  for  the 
enforcement  of  which  these  proceedings  were  instituted,  was  founded 
upon  contract,  or  resulted  from  a  suit,  which  had  for  its  cause  of  action 
a  claim  for  damages  for  the  non-performance  of  a  contract.  And  this 
inquiry  must  be  answered  from  the  affidavit  presented  to  the  judge, 
and  on  which  he  based  his  warrant.  The  affidavit  states  the  recovery 
of  a  judgment  against  the  relator,  in  favor  of  the  plaintiff,  William  S. 
Kieley,  as  receiver,  etc.,  of  Selah  Hiler,  for  $3,627.91,  but  neither 
states  the  cause  of  action  nor  the  nature  of  the  indebtedness,  nor  that 
it  was  upon  contract  express  or  implied,  nor  any  fact  from  which 
either  of  these  conditions  can  be  inferred.  The  affidavit  however  con- 
tains these  words :  "Deponent  further  says  and  charges,  that  he  verily 
believes  that  the  defendant  Dusenbury  neither  had  any  title  or  right 
to  the  moneys  received  by  him  from  the  chamberlain  of  the  city  of 
ISTew  York,  which  is  particularly  mentioned  in  the  judgment  roll  in 
which  the  judgment  in  favor'of  the  plaintiff  was  recovered,  and  that 
he  well  knew  that  he  had  none,  but  that  he  obtained  it  in  disoljcdience 
of  the  injunction  restraining  him  from  receiving  the  same,  and  by 
fraud  and  imposition  on  the  Court  of  Common  Pleas,  which  court 
made  the  order  on  which  he  obtained  the  money,  and  this  statement 
is  made  upon  the  judgment  roll  in  this  action,  and  findings  of  fact 
contained  in  said  judgment  roll,  and  upon  the  documentary  evidence 
put  in  evidence  on  the  trial  to  ol^tain  said  judgment.  Deponent 
further  says  the  said  judgment  is  wholly  unpaid,  and  constitutes  the 
foregoing  indebtedness;  and  further  says  that  for  the  said  cause  of 
action,  the  defendant  by  the  first  two  sections  of  the  act  (above 
referred  to)  cannot  be  arrested  or  imprisoned,  as  deponent  is  advised 
and  believes."    The  clause  last  cited  states  a  mere  inference  of  law, 


■CHAP.    III.]  PEOPLE  V.   SPEIR.  71 

and  that  not  the  verified  inference  of  the  affiant,  but  his  belief  merely 
of  the  truth  of  advice  given  him.  It  is  not  enough.  Latham  v.  Wester- 
velt,  2G  Barb.  2(;0;  Broadliead  v.  McConnell,  3  Barb.  187.  Every  fact 
stated  in  the  affidavit  as  to  the  cause  of  action,  meagre  as  it  is  in  facts, 
leads  to  an  inference  that  there  was  no  contract  at  the  foundation  of 
the  action,  nor  any  act  or  circumstance  from  which  one  could  be 
inferred  or  implied.  Indeed  the  facts  charged  indicate  directly  a 
cause  of  action  resting  in  tort.  That  the  defendant  obtained  the 
money  without  right  or  title,  and  that  he  well  knew  he  had  none, 
excludes  the  idea  that  he  received  it  under  a  contract,  and  when  we 
are  told  furthermore  that  he  received  the  money  in  disobedience  of  an 
injunction  order  restraining  liim  from  receiving  it,  and  then  that  he 
obtained  it  by  fraud  and  imposition  on  the  court,  we  perceive  not  only 
that  there  was  no  contract,  but  that  there  is  no  fact  from  which  a 
contract  can  be  implied,  and  that  if  the  allegations  are  true,  the  cause 
of  action  was  not  one  for  which  the  defendant,  according  to  the  pro- 
visions of  the  statute,  could  not  be  arrested.  Nor  is  there  any  fact 
stated  in  the  judgment  roll  which  aids  or  strengthens  the  affidavit. 
There  is  nothing  in  the  complaint  or  findings  to  indicate  that  the  cause 
of  action  was  a  contract  express  or  implied,  and  upon  the  hearing 
before  the  respondent  after  the  arrest  of  the  defendant,  he  so  held, 
saying:  "In  looking  at  the  judgment  roll  it  is  plain  that  the  warrant 
herein  should  not  have  been  granted,  for  the  defendant  could  have 
been  arrested  in  that  original  action,  and  if  so  he  cannot  be  prose- 
cuted under  "the  act  to  al)olish  imprisonment  for  debt." 

And  the  learned  judge  who  delivered  the  opinion  of  the  General 
Term  upon  the  first  review,  12  Hun,  70,  says:  "The  complaint  in 
the  receiver's  action  neither  set  forth  in  terms,  nor  in  any  manner 
alluded  to  any  contract  existing  between  himself  or  the  judgment 
debtor,  and  the  defendant  Dusenbury,  either  as  a  basis  of  the  liability 
desired  to  be  enforced  and  maintained,  or  otherwise,''  but  upholds 
the  jurisdiction  of  the  judge  upon  the  ground  that  "from  the  facts, 
imperfectly  stated  in  the  complaint  as  they  were,  it  could  readily  be 
seen  that  an  implied  contract  existed  in  law  for  the  pa^nnent  of  the 
moneys  received  by  the  defendant  Dusenbury,  to  the  receiver,  in  case 
he  had  no  right  to  receive  and  hold  them  upon  the  ground  claimed 
by  him."  We  cannot  agree  with  the  learned  judge  in  this  construction 
of  the  statute.  On  the  contrary  we  think  that  the  express  contract 
referred  to  in  the  statute  is  one  which  has  l)een  entered  into  l)y  the 
parties,  and  upon  whieli  if  broken  an  action  will  lie  for  damages, 
or  is  implied,  when  the  intention  of  the  parties,  if  not  expressed  in 
words,  may  be  gathered  from  their  acts  and  from  surrounding  circum- 
stances ;  and  in  either  case  must  be  the  result  of  the  free  and  bona  fde 
exercise  of  the  will,  producing  the  aggregatio  mcntium,  the  joining 
together  of  two  minds,  essential  to  a  contract  at  common  law.  There 
is  a  class  of  cases  where  the  law  prescribes  the  rights  and  liabilities 


73  PEOPLE  V.  SPEIR.  [book   I. 

of  persons  who  have  not  in  reality  entered  into  any  contract  at  all 
■^ith  one  another,  but  between  whom  circumstances  have  arisen  which 
make  it  just  that  one  should  have  a  right,  and  the  other  should  be 
subject  to  a  liability,  similar  to  the  rights  and  liabilities  in  certain 
cases  of  express  contract.  Thus,  if  one  man  has  obtained  money  from 
another,  through  the  medium  of  oppression,  imposition,  extortion,  or 
deceit,  or  by  the  commission  of  a  trespass,  such  money  may  be  recov- 
ered back,  for  the  law  implies  a  promise  from  the  wrong-doer  to 
restore  it  to  the  rightful  owner,  although  it  is  obvious  that  this  is  the 
very  opposite  of  his  intention.  Implied  or  constructive  contracts  of 
this  nature  are  similar  to  the  constructive  trusts  of  courts  of  equity, 
and  in  fact  are  not  contracts  at  all.  Addison  on  Contracts,  22.  And 
a  somewhat  similar  distinction  is  recognized  in  the  civil  law,  where  it 
is  said :  "In  contracts  it  is  the  consent  of  the  contracting  parties  which 
produces  the  obligation;  in  quasi-contracts  there  is  not  any  consent. 
The  law  alone,  or  natural  equity  produces  the  obligation ,b-y  rendering 
obligatory  the  fact  from  which  it  results.  Therefore  these  facts  are 
called  quasi-contracts,  because  without  being  contracts,  they  produce 
obligations  in  the  same  manner  as  actual  contracts."  1  Poth.  Ob.  113. 
And  again  at  common  law  says  Biackstone,  3  Bl.  Com.  165 :  "If  any 
one  cheats  me  with  false  cards,  or  dice,  or  by  false  weights  or  measures, 
or  by  selling  me  one  commodity  for  another,  an  action  on  the  case  lies 
against  him  for  damages,  upon  the  contract  which  the  law  implies 
that  every  transaction  is  fair  and  honest."  So  if  money  is  stolen, 
its  owner  may  sue  the  thief  for  conversion ;  doubtless  he  may  sue  him 
for  money  had  and  received  to  his  use,  but  in  either  of  these  cases 
could  it  be  claimed  that  the  wrong-doer  was  within  the  protection 
of  the  act  passed  to  abolish  imprisonment  for  debt,  or  that  the  con- 
tract implied  by  law  was  the  contract  specified  in  the  first  section  of 
that  act?  Surely  not.  And  to  that  class  the  present  case  belongs. 
The  court  below  expressly  puts  the  obligation  upon  the  mere  authority 
of  the  law,  and  makes  a  contract  "by  force  of  natural  equity."  The 
learned  judge  says:  "The  law  implied  a  promise  to  pay  over,  as  the 
judgment  directed  that  to  be  done."  So  obligations  are  created  in  con- 
sequence of  frauds  or  negligence,  and  in  either  case  the  law  compels 
reparation,  and  permits  the  tort  to  be  waived,  but  there  is  no  contract. 
That  can  only  come  from  a  convention  or  agreement  of  two,  not  by 
the  option  or  at  the  election  of  one.  In  the  case  before  us  there  is 
not  even  an  election,  for  the  complaint  states  no  contract,  nor  charges 
any  assumpsit. 

It  is  also  claimed  by  the  respondent's  counsel  that  inasmuch  as  the 
judgment  declares  the  assignment  under  which  the  defendant  claimed 
the  money  in  question  to  be  void,  therefore  Dusenbury  must  be  deemed 
to  have  fraudulently  incurred  the  obligation  for  which  the  action  was 
brought,  but  that  position  is  subject  to  tho  ol)jection  before  mentioned; 
in  that  the  debt  or  obligation  spoken  of  in  the  act  of  1831  means  a 


CHAP.    III.]  PEOPLE  V.   SPEIR.  73 

contract  resulting  from  the  voluntary  arrangement  of  the  parties,  and 
not  one  implied  by  law  for  the  purpose  of  giving  a  remedy  for  a 
wrong  sufTcrod. 

That  the  debt  or  obligation  was  fraudulently  incurred  is  one  of  the 
particulars  which,  proved  to  exist,  permits  the  judge  to  issue  the 
warrant ;  but  it  must  be  remembered  that  in  an  action  for  the  recovery 
of  a  debt,  no  arrest  can  be  had,  and  it  is  mere  evasion  to  say  the 
defendant  violated  the  injunction ;  imposed  upon  the  court ;  made  a 
claim  under  a  fictitious  assignment;  and  so,  having  wrongfully 
obtained  the  money,  he  refuses  to  pay  it  over,  but  the  law  says  he 
ought  to,  therefore  he  shall  be  deemed  to  have  promised,  hence  you 
ma}'  sue  on  that  assumpsit,  but  you  cannot  arrest  because  the  non- 
imprisonment  act  says  you  shall  not  in  an  action  on  contract.  There- 
fore you  set  out  in  an  affidavit  the  very  frauds  in  consequence  of  which 
the  law  implied  the  contract,  and  demand  the  arrest  of  the  defendant. 
It  is  very  clear  that  an  action  for  wrongs  to  persons,  or  to  their 
property;  actions  of  trover  or  trespass,  or  replevin,  are  not  within 
the  section,  for  they  do  not  arise  on  contract.  The  party  wronged 
cannot  by  waiving  the  tort  make  a  contract,  and  then  resort  to  the 
fact  which  constituted  the  tort  as  a  ground  of  arrest.  Fassett  v. 
Tallmadgc,  37  Barb.  436,  was  an  action  similar  to  the  one  upon  which 
these  proceedings  are  based,  to  set  aside  a  conveyance  made  by  a 
debtor  of  the  plaintiff  to  the  defendant  Tallraadge,  on  the  ground 
that  was  fraudulent  and  void  as  to  creditors;  it  was  so  held,  and 
the  defendant  was  ordered  to  pay  to  a  receiver  appointed  by  the  court 
a  sum  of  money  for  the  property  received  by  him.  In  considering 
whether  he  was  liable  to  be  imprisoned,  the  court  say :  ''The  first  section 
of  the  act  to  abolish  imprisonment  for  debt,  and  the  one  hundred  and 
seventy-ninth  section  of  the  Code,  fourth  subdivision,  are  expressly 
confined  in  their  operation  to  cases  of  contract,  or  in  which  the  debt 
is  contracted,  or  an  ol)ligation  is  incurred.  Neither  of  them  apply  to 
a  case  like  the  present,  where  the  action  is  a  proceeding  in  equity  to 
set  aside  a  conveyance  or  assignment  of  personal  property." 

x\s  the  complaint  stated  no  cause  of  action  upon  contract,  and  as  the 
affidavit  presented  to  the  judge  contained  no  statement  or  assertion 
tending  to  establish  a  contract  express  or  implied  as  the  basis  of  the 
judgment,  but  on  the  contrary  an  action  to  recover  the  fund  on  the 
ground  of  its  unlawful  ajipropriation  or  conversion  by  the  defendant, 
showing  misfeasance  or  malfeasance  on  his  part,  rather  than  a  con- 
tract liability,  the  case  is  not  within  the  statute. 

Many  otiior  questions  are  raised  by  the  appellant's  points,  but  as  the 
conclusion  to  wbicli  w(>  liav(>  arrived  in  regard  to  the  one  above  men- 
tioned go'.'s  to  the  foundation  of  tlie  proceedings,  it  is  unnecessary  to 
disr-iiss  them. 

'I'lu'  order  of  tlie  (icneral  Term  should  be  reversed,  and  the  warrant 
of  Juilge  Si'i:iu  for  the  arrest  of  the  relator,  dated  14th  of  November, 


74  u.  s.  V.  REiD.  [book  I. 

1876,  and  all  subsequent  proceedings  thereunder,  vacated  and  set 
aside. 

All  concur,  except  Miller,  J.,  absent  at  argument. 

Ordered  accordingly} 


U.  8.  V.  Reid,  U.  S.  Circuit  Court  (1883)  4  N.  Y.  C.  P.  1,  3, 
Wheeler,  J. : 

Whether  the  execution  could  properly  issue  in  such  a  case  is  to  be 
determined  by  the  laws  of  the  State.  "U.  S.  Eev.  Stat.  §§  990,  991; 
Low  V.  Durfee,  5  Fed.  Eep.  256. 

The  law  of  the  State  directly  applicable  is  foundT  in  the  Code  of 
Civil  Procedure,  section  549.  That  section  allows  process  to  issue 
against  the  body  in  actions : 

"1.  To  recover  a  fine  or  penalty 

"4.  In  an  action  upon  contract,  express  or  implied,  other  than  a 
promise  to  marry;  where  it  is  alleged  in  the  complaint  that  the 
defendant  was  guilty  of  a  fraud  in  contracting  or  incurring  the 
liability,"  and  in  no  other  cases  claimed  to  be  applicable. 

The  object  of  the  government  is  not  to  prevent  imports,  but  to  collect 
its  revenue.  The  statutes  which  work  this  forfeiture  are  remedial 
to  that  end.  This  is  the  mode  of  obtaining  the  duties  when  the  goods 
are  so  proceeded  with  as  to  become  forfeited.  The  value  of  the  goods 
forfeited,  when  recovered,  is  no  more  a  penalty  than  the  duties  would 
be  if  paid.  Stockwell  v.  United  States,  13  Wall.  (80  U.  S.)  531; 
In  re  Vetterlein,  13  Blatch.  (U.  S.  Cir.  Ct.)  44.  The  execution  cannot 
be  upheld  on  the  ground  that  the  recovery  was  a  penalty. 

As  to  the  other  ground,  this  can  hardly  be  said  to  be  an  action 
upon  contract,  either  express  or  implied.  Certainly  there  was  no  ex- 
press contract.  By  force  of  the  law,  the  property  ceased  to  be  the 
property  of  the  defendants,  and  became  the  property  of  the  govern- 
ment, if  the  government  should  choose  to  take  it,  and  the  government 
became  entitled  to  the  value  of  it  in  lieu  of  the  property,  and  not  by 

'Where  a  plaintiff  waives  the  tort  and  sues  by  action  in  form  ex  contractu 
to  recover  money  wrongfully  converted  to  his  own  use  by  defendant,  and  the 
record  shows  that  a  tort  has  been  actually  committed,  he  is  entitled,  under 
the  Illinois  statute,  to  a  ca.  sa.  or  execution  against  the  body  of  defendant, 
notwithstanding  the  form  of  action  adopted.  Barney  v.  Chapman  (1884)  21 
Fed.  903. 

While  the  tendency  is  evident  to  subordinate  the  letter  to  the  spirit  of 
the  law  in  matters  of  oivil  attachment,  the  relaxation  should  not  extend  to 
attachment  of  the  person,  inasmuch  as  statutes  in  restraint  of  personal  liberty 
should  be  construed  strictly  and  to  the  letter.  It  is  therefore  possible  to  sup- 
port First  Nat'l  Bank  of  Nas^iua  v.  Van  Vooris  (1895)  G  S.  D.  648  ante,  and 
People  V.  Speir,  supra,  on  theory  as  well  as  in  practice. — Ed. 


CHAP,  in.]  SCEVA  v.  true.  75 

virtue  of  any  contract.  The  action  of  debt  could  be  maintained, 
because  of  the  title  or  right  created  by  the  law,  and  not  by  virtue  of 
any  obligation  to  pay  entered  into  by  the  defendants,  or  to  be  implied 
from  their  acts  beyond  what  rests  upon  everybody  to  obey  the  law 
and  to  yield  to  all  its  requirements.  The  liability  to  be  incurred 
within  the  meaning  of  this  part  of  the  Code  is  a  liability  upon  contract 
between  party  and  party,  and  not  the  general  compact  between 
each  member  of  society,  and  all  the  others  to  support  the  laws  implied 
from  living  under  them.  These  views  were  well  supported  by  the 
reasoning  of  Choate,  J.,  in  United  States  v.  Moller,  10  Ben.  (U.  S. 
District  Court)   189. 

Motion  to  set  aside  execution  granted. 


3.      CONTRACT  VERSUS  QUASI-CONTRACT. 


SCEVA  V.  TRUE. 

Supreme  Judicial  Court  of  New  Hampshire,  1873. 

[53  New  Hampshire,  637.] 

For  the  purpose  of  raising  questions  of  law,  and  no  other,  the  parties 
agreed  that  the  facts  are  as  stated  in  the  following  motions  to  dismiss, 
and  the  questions  were  reserved  for  the  consideration  of  the  whole 
court. 

Assumpsit  for  the  support  of  Fanny  True  under  the  circumstances 
which  follow : 

One  Fanny  True,  an  insane  person,  lived  from  1822  until  Nov., 
1871,  in  the  family  of  her  brother-in-law,  one  Sceva  by  name.  Fanny's 
father,  William  True,  died  in  1822,  leaving  a  life  interest  in  his  real 
estate  to  his  widow,  and  conveyed  by  deed,  executed  on  same  day  with 
his  will,  an  undivided  one-half  of  his  real  estate  to  Fanny  and  her 
sister  Martha.  Said  Sceva,  the  intestate,  carried  on  said  premises  in 
1822,  married  ^lartha  in  1823,  and  lived  on  the  premises  so  conveyed 
to  the  sisters  from  1823  until  a  month  prior  to  his  death  in  1871. 

Said  Sceva  took  the  entire  charge  of  the  premises,  used  the  crops  and 
the  proceeds  of  the  lumber,  wood,  and  bark,  sold  off  of  the  whole  farm 
for  the  common  benefit  of  the  family,  and  paid  the  taxes  and  other  bills 
for  the  support  and  maintenance  of  the  family.  No  administration 
was  ever  had  upon  any  part  of  the  estate-  of  said  William  True,  nor 
was  there  any  use  or  trust  for  the  benefit  of  said  Fanny.  No  attempt 
was  ever  made  to  make  any  contract  with  said  Fanny  about  her  support. 


76  SCEVA  r.  TRUE.  [book  I. 

or  anything  else.  No  application  was  made  for  the  appointment  of  a 
guardian  in  the  interest  of  said  Enoch  F.  Sceva,  because  of  the  oppo- 
sition of  his  wife  to  any  step  looking  to  tliat  end.  She  has  been  sup- 
ported during  said  forty  years  by  said  Sceva,  his  wife,  and  her  mother, 
out  of  the  avails  of  said  real  estate  taken  as  aforesaid,  and  out  of  their 
own  funds.  Since  184-i  her  chief  support  has  been  from  said  Sceva. 
Said  intestate  was  worth  nothing  when  he  commenced  on  said  farm, 
and  died  worth  about  $1,600. 

Shirley,  for  the  defendant. 

The  foundation  principle  of  the  entire  law  of  contracts  is,  that  the 
parties  must  have  the  capacity  to  contract,  and  must  actually  exercise 
their  faculties  by  contracting.  Here  there  was  no  capacity,  for  there 
was  but  one  mind;  no  contract  was  made,  and  no  attempt  was  made 
to  make  one.  The  two  vital  facts,  without  which  no  contract,  tacit 
or  express,  can  exist — capacity  and  its  exercise — are  wanting.  Was 
there  an  implied  contract  ?  What  does  that  term  mean  ?  In  thousands 
of  cases,  in  the  books,  we  know  just  what  it  means.  The  parties  have 
capacity  to  contract ;  facts,  circumstances,  few  or  many,  clear  or  com- 
plicated, exist,  which  lead  the  minds  of  the  jurors  to  the  conclusion 
that  the  minds  of  the  parties  met.  Minds  may  meet  by  words,  acts,  or 
both.  The  words  even  may  negative  such  meeting,  but  "acts  which 
speak  louder  than  words"  may  conclude  him  who  denies  a  tacit  con- 
tract. Aside  from  cases  where  the  capacity  to  contract  is  wanting, 
no  instance  now  occurs  to  us  in  which  the  implied  contract  cannot  be 
supported  upon  these  principles,  and  the  familiar  doctrines  of  waiver 
and  estoppel.  Our  position  is.  that  where  there  is  no  express  contract, 
a  jury  may  from  circumstances  infer  one,  but  that  this  can  in  no  case 
be  done  where  the  capacity  to  contract  is  wanting.  This  court  has 
settled  that  there  is  a  distinction  between  the  cases  of  minors  and 
lunatics.  Burke  v.  Allen,  29  N.  H.  117.  The  reasons  are  apparent.  It 
is  another  fundamental  principle,  that  no  one,  by  voluntarily  perform- 
ing services  for  another,  can  make  that  other  his  debtor.  If  these  prin- 
ciples apply  to  cases  where  the  contracting  mind  is  wanting,  they  settle 
this  case.  We  know  it  is  sometimes  said,  in  such  a  case,  "the  law  will 
imply  a  contract."  What  docs  that  mean  ?  As  it  seems  to  us,  only  this : 
that  where  A,  who  has  capacity  to  contract,  furnishes  B,  who  is  totally 
destitute  of  such  capacity,  what  is  proper  for  B  to  have,  the  judges 
will  turn  the  bench  into  a  broker's  board,  will  substitute  themselves 
for  B,  make  a  contract  where  none  existed,  cause  it  to  relate  back  to  the 
voluntary  acts  of  A,  and  then  sit  in  judgment  upon  and  enforce  their 
own  contract.  It  is  a  perversion  of  language  to  call  such  a  performance 
a  contract  of  any  kind.  It  is  judicial  usurpation.  The  Constitution 
gave  the  court  no  such  power.  Tlie  court  has  no  power  to  make  con- 
tracts for  people:  it  can  only  infer  one  where  a  jury  might.^ 

Harnnrd  for  the  plaintiff. 

'Counsel  here  cited  a  number  of  cases. — Ed. 


CHAP,  in.]  scEVA  v.  true.  77 

Ladd,  J.^  The  other  facts  stated  in  the  motion  (which  is  to  be  re- 
garded rather  as  an  agreed  case  than  a  motion  to  dismiss)  stand  upon 
a  different  footing,  inasmuch  as  they  go  to  the  merits  of  the  case,  and 
mav  be  pleaded  in  bar  or  given  in  evidence  under  the  general  issue, 
and,  when  so  pleaded  or  proved,  their  legal  effect  will  be  a  matter  upon 
which  the  court,  at  the  trial,  must  pass.  Some  suggestions  upon  this 
part  of  the  case  may  therefore  be  of  use. 

We  regard  it  as  well  settled  by  the  cases  referred  to  in  the  briefs  of 
counsel,  many  of  which  have  been  commented  on  at  length  by  Mr. 
Shirley  for  the  defendant,  that  an  insane  person,  an  idiot,  or  a  person 
utterly  bereft  of  all  sense  and  reason  by  the  sudden  stroke  of  accident  or 
disease,  may  be  held  liable,  in  assumpsit,  for  necessaries  furnished  to 
him  in  good  faith  while  in  that  unfortunate  and  helpless  condition. 
And  the  reasons  upon  which  this  rests  are  too  broad,  as  well  as  too 
sensible  and  humane,  to  be  overborne  by  any  deductions  which  a  refined 
logic  may  make  from  the  circumstance  that  in  such  cases  there  can  be 
no  contract  or  promise  in  fact,  no  meeting  of  the  minds  of  the  parties. 
The  cases  put  it  on  the  ground  of  an  implied  contract ;  and  by  this  is 
not  meant,  as  the  defendant's  counsel  seems  to  suppose,  an  actual  con- 
tract,— that  is,  an  actual  meeting  of  the  minds  of  the  parties,  an  actual, 
mutual  understanding,  to  be  inferred  from  language,  acts,  and  circum- 
stances, by  the  jury, — but  a  contract  and  promise,  said  to  be  implied  by 
the  law,  where,  in  point  of  fact,  there  was  no  contract,  no  mutual  under- 
standing, and  so  no  promise.  The  defendant's  counsel  says  it  is  usurpa- 
tion for  the  court  to  hold,  as  matter  of  law,  that  there  is  a  contract  and 
a  promise,  when  all  the  evidence  in  the  case  shows  that  there  was  not  a 
contract,  nor  the  semblance  of  one.  It  is  doubtless  a  legal  fiction,  in- 
vented and  used  for  the  sake  of  the  remedy.  If  it  was  originally  usur- 
pation, certainly  it  has  now  become  very  inveterate,  and  firmly  fixed  in 
the  body  of  the  law. 

Suppose  a  man  steals  my  horse,  and  afterwards  sells  it  for  cash :  the 
law  says  I  may  waive  the  tort,  and  recover  the  money  received  for  the 
animal  of  him  in  an  action  of  assumpsit.  Why?  Because  the  law,  in 
order  to  protect  my  legal  right  to  have  the  money,  and  enforce  against 
the  thief  his  legal  duty  to  hand  it  over  to  me,  implies  a  promise,  that 
is,  feigns  a  promise  when  there  is  none,  to  support  the  assumpsit.  In 
order  to  recover,  I  have  only  to  show  that  the  defendant,  without  right, 
sold  my  horse  for  cash,  which  he  still  retains.  Where  are  the  circum- 
stances, the  language  or  conduct  of  the  parties,  from  which  a  meeting 
of  their  minds  is  to  be  inferred,  or  implied,  or  imagined,  or  in  any 
way  found  by  the  jury  ?  The  defendant  never  had  any  other  purpose 
but  to  get  the  money  for  the  horse  and  make  off  with  it.  The  owner 
of  the  horse  had  no  intention  to  sell  it,  never  assented  to  the  sale,  and 
only  seeks  to  recover  the  money  ol)tained  for  it  to  save  hiniself  from 
total  loss.  The  defendant,  in  such  a  case,  may  have  the  physical 
'Part  of  opinion  is  omitted  relating  to  service  upon  an  insane  person. — Ed. 


78  SCEVA    V.    TRUE.  [BOOK   I. 

cai^acity  to  promise  to  pay  over  to  the  owner  the  money  which  he  means 
to  steal;  but  the  mental  and  moral  capacity  is  wanting,  and  to  all 
practical  intents  the  capacity  to  promise  according  to  his  duty  may 
be  said  to  be  as  entirely  wanting  as  in  the  case  of  an  idiot  or  lunatic. 
At  all  events,  he  does  not  do  it.  He  struggles  to  get  away  with  the 
money,  and  resists  with  a  determination  never  to  pay  if  he  can  help  it. 
Yet  the  law  implies,  and  against  his  utmost  resistance  forces  into  his 
mouth  a  promise  to  pay.  So,  where  a  brutal  husband,  without  cause 
or  provocation,  but  from  wanton  cruelty  or  ca])rice,  drives  his  wife 
from  his  house,  with  no  means  of  subsistence,  and  warns  the  tradesmen 
not  to  trust  her  on  his  account,  thus  expressly  revoking  all  authority 
she  may  be  supposed  to  have,  as  his  agent,  by  virtue  of  the  marital 
relation,  courts  of  high  authority  have  held  that  a  promise  to  pay  for 
necessaries  furnished  her  while  in  this  situation,  in  good  faith,  is  im- 
plied by  law  against  the  husband,  resting  upon  and  arising  out  of  his 
legal  obligation  to  furnish  her  support.  See  remark  of  Sargent  in 
Kay  V.  Alden,  50  N.  H.  83,  and  authorities  cited.  So,  it  was  held  that 
tlie  law  will  imply  a  promise  to  pay  toll  for  passing  upon  a  turnpike 
road,  notwithstanding  the  defendant,  at  the  time  of  passing,  denied  his 
liability  and  refused  payment.  Proprietors  of  Turnpike  v.  Taylor, 
G  N.  H.  499.  In  the  recent  English  case  of  The  Great  Northern  Eailw. 
Co.  V.  Swaffield,  L.  E.  9  Ex.  132,^  the  defendant  sent  a  horse  by 
the  plaintiff's  railway  directed  to  himself  at  S.  station.  On  the 
arrival  of  the  horse  at  S.  station,  at  night,  there  was  no  one  to 
meet  it,  and  the  plaintiffs,  having  no  accommodation  at  the  station, 
sent  the  horse  to  a  livery  stable.  The  defendant's  servant  soon 
after  arrived  and  demanded  the  horse :  he  was  referred  to  the 
livery  stable  keeper,  who  refused  to  deliver  the  horse  except  on  pay- 
ment of  charges,  which  were  admitted  to  be  reasonable.  On  the 
next  day  the  defendant  came  and  demanded  the  horse,  and  the  station- 
master  offered  to  pay  the  charges  and  let  the  defendant  take  away 
the  horse;  but  the  defendant  declined,  and  went  away  without  the 
horse,  which  remained  at  the  livery  stable.  The  plaintiffs  afterwards 
offered  to  deliver  the  horse  to  the  defendant  at  S.  without  payment  of 
any  charges,  but  the  defendant  refused  to  receive  it  unless  delivered 
at  liis  farm,  and  with  payment  of  a  sum  of  money  for  his  expenses  and 
loss  of  time.  Some  months  after,  the  plaintiffs  paid  the  livery  stable 
keeper  his  charges,  and  sent  the  horse  to  the  defendant,  who  received 
it ;  and  it  was  held  that  the  defendant  was  liable,  upon  the  ground 
of  a  contract  implied  by  law,  to  the  plaintiffs  for  the  livery  charges 
thus  paid  by  th'im. 

Illustrations  might  be  multiplied,  but  enough  has  been  said  to  show 

that  when  a  contract  or  promise  implied  by  law  is  spoken  of,  a  very 

different  thing  is  meant  from  a  contract  in  fact,  whether  express  or 

tacit.  The  evidence  of  an  actual  contract  is  generally  to  be  found  either 

^See  post,  p.  233  for  report  of  this  case. — Ed. 


CHAP.    III.]  SCEVA   V.   TRUE.  79 

in  some  writing  made  by  the  parties, or  in  verbal  communications  which 
passed  between  them,  or  in  their  acts  and  conduct  considered  in  the 
light  of  the  circumstances  of  each  particular  case.  A  contract  implied 
by  law,  on  the  contrary,  rests  upon  no  evidence.  It  has  no  actual 
existence;  it  is  simply  a  mythical  creation  of  the  law.  The  law  says  it 
shall  be  taken  that  there  was  a  promise,  when,  in  point  of  fact,  there 
was  none.  Of  course  this  is  not  good  logic,  for  the  obvious  and 
sufficient  reason  that  it  is  not  true.  It  is  a  legal  fiction,  resting 
wholly  for  its  support  on  a  plain  legal  obligation,  and  a  plain  legal 
riglit.  If  it  were  true,  it  would  not  be  a  fiction.  There  is  a  class  of 
legal  rights,  with  their  correlative  legal  duties,  analogous  to  the  obli- 
gationes  quasi  ex  contractu  of  the  civil  law,  which  seem  to  lie  in  the 
region  between  contracts  on  the  one  hand,  and  torts  on  the  other,  and  to 
call  for  the  application  of  a  remedy  not  strictly  furnished  either  by 
actions  ex  contractu,  or  actions  ex  delicto.  The  common  law  supplies 
no  action  of  duty,  as  it  does  of  assumpsit  and  trespass ;  and  hence  the 
somewhat  awkward  contrivance  of  this  fiction  to  apply  the  remedy  of 
assumpsit  where  there  is  no  trte  contract,  and  no  promise  to  support  it. 
All  confusion  in  this  matter  might  be  avoided,  as  it  seems  to  me, 
by  a  suitable  discrimination  in  the  use  of  the  term  implied  contract. 
In  the  discussion  of  any  subject,  there  is  always  danger  of  spending 
breath  and  strength  about  mere  words,  as  well  as  falling  into  error 
when  the  same  term  is  used  to  designate  two  different  things.  If  the 
term,  implied  contract,  be  used  indifferently  to  denote  (1)  the  fictitious 
creation  of  the  law  spoken  of  above;  (2)  a  true  or  actual  but  tacit  con- 
tract, that  is,  one  where  a  meeting  of  the  minds  or  mutual  understand- 
ing is  inferred  as  matter  of  fact  from  circumstances,  no  words  written 
or  verbal  having  been  used;  and  (3)  that  state  of  things  where  one  is 
estopped  by  his  conduct  to  deny  a  contract,  although,  in  fact,  he  has  not 
made  or  intended  to  make  one, — it  is  not  strange  that  confusion  should 
result,  and  disputes  arise  where  there  is  no  difference  of  opinion  as  to 
the  substance  of  the  matter  in  controversy:  whereas,  were  a  different 
term  applied  to  each,  as,  for  exainple,  that  of  legal  duty  to  designate 
the  first,  contract,  simply,  to  designate  the  second,  and,  contract  by 
estoppel,  the  third,  this  difficulty  would  be  avoided.  It  would  of  course 
come  to  the  same  thing,  in  substance,  if  the  first  were  always  called  an 
implied  contract,  while  the  other  two  were  otherwise  designated  in  such 
way  as  to  show  distinctly  what  is  meant.  This  is  not  always  done,  and 
an  examination  of  our  own  cases  would  perhaps  show  that  more  or 
less  confusion  has  arisen  from  such  indiscriminate  use  of  the  term.  A 
hotter  nomenclature  is  desirable.  But  wluitever  terms  are  employed,  it 
is  indispensable  that  the  distine^ion,  which  is  one  of  substance,  should 
be  kept  clearly  in  mind,  in  order  that  the  principles  governing  in  one 
class  of  cases  may  not  be  erroneously  applied  to  another.  See  remarks 
of  Smith,  J.,  in  Bixby  v.  Moore,  51  N.  II.  402,  and  authorities  cited 
at  page  40-i. 


80  SCEVA   V.   TRUE.  [BOOK   I. 

Much  may  doubtless  be  said  against  supplying  a  remedy  for  the 
enforcement  of  a  plain  legal  right  "by  so  rude  a  device  as  a  legal 
fiction"  (Maine,  Ancient  Law,  26) — but,  at  this  time  of  day,  that  is  a 
matter  for  the  consideration  of  the  legislature  rather  than  the  courts. 
The  remedy  of  indebitatus  assumpsit~ean  hardly  be  abolished  in  that 
large  class  of  cases  where  it  can  only  be  sustained  by  resorting  to  a 
fiction  until  some  other  is  furnished  to  take  its  place. 

It  by  no  means  follows  that  this  plaintiff  is  entitled  to  recover.  In 
the  first  place,  it  must  appear  that  the  necessaries  furnished  to  the 
defendant  were  furnished  in  good  faith,  and  with  no  purpose  to  take 
advantage  of  her  unfortunate  situation.  And  upon  this  question,  the 
great  length  of  time  which  was  allowed  to  pass  without  procuring  the 
appointment  of  a  guardian  for  her  is  a  fact  to  which  the  jury  would 
undoubtedly  attach  much  weight.  Its  significance  and  importance 
must,  of  course,  depend  very  much  on  the  circumstances  under  which 
the  delay  and  omission  occurred,  all  of  which  will  be  for  the  jury  to 
consider  upon  the  question  whether  everything  was  done  in  good  faith 
towards  the  defendant,  and  with  an  expectation  on  the  part  of  the 
plaintiff's  intestate  that  he  was  to  be  paid.  Again:  the  jury-  are  to 
consider  whether  the  support  for  which  the  plaintiff  now  seeks  to 
recover  was  not  furnished  as  a  gratuity,  with  no  expectation  or  inten- 
tion that  it  should  be  paid  for,  except  so  far  as  compensation  might 
be  derived  from  the  use  of  the  defendant's  share  of  the  farm.  And, 
upon  this  point,  the  relationship  existing  between  the  parties,  the 
length  of  time  the  defendant  was  there  in  the  family  without  any  move 
on  the  part  of  Enoch  F.  Sceva  to  charge  her  or  her  estate,  the  absence 
(if  such  is  the  fact)  of  an  account  kept  by  him  wherein  she  was 
charged  with  her  support,  and  credited  for  the  use  and  occupation  of 
the  land, — in  short,  all  the  facts  and  circumstances  of  her  residence 
with  the  family  that  tend  to  show  the  intention  or  expectation  of  Enoch 
F.  Sceva  with  respect  to  being  paid  for  her  support,  are  for  the  jury. 
Hunger  v.  Hunger ;  Seavey  v.  Seavey ;  Bundy  v.  Hyde.  If  these 
services  were  rendered,  and  this  support  furnished,  with  no  expectation 
on  the  part  of  Enoch  F.  Sceva  that  he  was  to  charge  or  be  paid  there- 
for, this  suit  cannot  be  maintained ;  for  then  it  must  be  regarded  sub- 
stantially in  the  light  of  a  gift  actually  accepted  and  appropriated  by 
Ihe  defendant,  without  reference  to  her  capacity  to  make  a  contract,  or 
even  to  signify  her  acceptance  by  any  mental  assent.^ 

In  this  view,  the  facts  stated  in  the  case  will  be  evidence  for  the 
jury  to  consider  upon  the  trial ;  but  they  do  not  present  any  question 
of  law  upon  which  the  rights  of  the  parties  can  be  determined  by 
the  court.  Case  discharged. 

'Accord:  Ilcrtzog  v.  ITertzog  (1857)  29  Pa.  St.  4(15,  an  excellent  case 
largely  quoted  in  Woods  v.  Ayios  (1878)  39  Mich.  .345,  printed  ante. 

In  tliorou^di  accordance,  both  as  to  the  facts  and  tlie  law,  is  In  re  Rhodes 
(1890)  L.  R.  44  Ch.  D.  94.— Ed. 


CHAP,    III.]  AUGNER   V.    MAYOR.  81 

Augner  v.  Mayor  (1897)  14  Appellate  Division  (Supreme  Court  of 
New  York)  4GG,  Bartlett,  J.,  dissenting: 

This  action  is  upon  what  has  been  aptly  termed  a  quad  contract. 
It  is  not  upon  a  genuine  contract,  that  is,  an  agreement,  in  fact, 
between  jjlaintifl'  and  defendant,  either  express  or  implied.  It  is  simply 
upon  a  statutory  liability,  which  is  sufficient  to  sustain  an  action 
analogous  to  what  was  formerly  called  assumpsit.  "That  feature," 
as  Judge  Allen  said,  in  McCoun  v.  N.  Y.  C.  &  H.  R.  R.  R.  Co., 
50  N.  Y''.  180,  "does  not  suppose  a  contract,  but  simply  a  promise 
ex  parte."  \\\  the  classification  of  actions  tlij^  i<  iiii.lni;l»j..i11y  :rn 
action  ex  cuiilractu  and  not  ex  delicto.  But  that  does  not  selile  the 
present  question,  which  is,  whethex  an_  action  upon  an  o])ligaiion 
afismg  solely  ex  lege — thougli  proceeding  in  form  ex  contractu — is 
cohtemi5TaTed  by  section  -12^0  of  the  Code  of  Civil  Procedure.  Tiiere 
are^many"actrons  upon  contract — actual  even — which  are  not  within 
this  section.  In  fact  the  contracts,  whether  express  or  implied,  which 
come  within  it  are  strictly  limited.  They  are,  prst,  an  express  ccn- 
Iract  to  pay  money  fixed  by  its  terms,  or  capable  of  being  ascertained 
therefrom  by  computation  only.  That,  certainly,  is  not  this  case. 
Second,  an  express  or  implied  contract  to  pav  money  received  or  dis- 
bursed, or  the  value  of  property  delivered,  or  of  services  rendered  by, 
to  or  for  the  use  of  the  defejidant  or  a  third  person.  This  case  cannot 
come  within  tlie  two  latter  alternatives.  It  has  nothing  to  do  with 
property  delivered  or  services  rendered.  The  claim  is,  that  it  comes 
within  the  earlier  specification,  namely,  "to  pay  money  received  or 
disbursed."  As  there  is  no  charge  in  the  complaint  of  the  disburse- 
ment of  money,  the  point  is  reduced  to  its  receipt.  Does  the  com- 
plaint, then,  aver  the  defendant's  breach  of  an  "implied  contract  to 
pay  money  received"  by  it?  There  is  no  other  possible  phase  of  the 
section  which  bears  upon  the  question  presented.  The  complaint  cer- 
tainly does  not  aver  even  an  implied  contract  to  pay  money  received 
"to,  or  for  the  use  of"  the  defendant  or  a  third  person.  It  cither 
alleges  money  received  "hy"  the  defendant,  or  it  alleges  nothing  which 
is  within  the  section.  What,  then,  is  the  feature  of  the  contract  to 
which  this  language  refers?  Clearly,  money  received  by  the  defend- 
ant to  the  use  of  the  plaintiff,  that  is,  money  which,  upon  its  receipt 
Ity  the  defendant,  becomes  due  and  payable  to  the  plaintiff,  and  so 
becomes  due  and  payable  under  some  contract  between  them,  either 
express  or  implied.  This  means  a  contract  between  the  parties,  an 
actual  contract  in  fact,  whether  the  promise  to  pay  be  direct  or  infer- 
ential. "A^i!n]ilied  promise."  to  again  quote  Judge  Allex  in  the  case 
cited  supra,  ov  contract  is  but  an  express  promise  proved  by  circum- 
stantial  evidenceir  It  is  clear  that  the  codifier  here  was  not  dealing 
with  legaTfictions  invented  to  sustain  remedies  ex  contractu  upon 
lialulities  which  rest  upon  nauglit  save  statutorv  mandate,  pure  and 
simple.    The  intention  was  to  limit  those  cases  where  a  plaintilf  might 


82  AUGXER    V.   MAYOR.  [BOOK    I. 

enter  his  judgment  without  the  revisorv  consideration  of  the  court  to 
breaches  of  the  few  simple  and  actual  contracts  carefully  enumerated 
in  the  section.  In  other  Code  instances  we  find  no  such  limitation. 
For  example,  a  warrant  of  attachment  may  issue  in  an  action  for  the 
breach  of  any  contract  whatever,  express  or  implied,  except  a  contract 
to  marry.  Code,  §  635.  But  the  construction  given  to  even  this 
unlimited  provision  favors  the  view  that  the  contract,  express  or  im- 
plied, referred  to  in  this  latter  section  is  a  contract  founded  upon 
consent,  that  is,  upon  the  actual  meeting  of  minds;  in  other  words, 
a  contract  between  the  parties  in  the  ordinary  and  proper  sense  of  this 
term,  and  not  a  mere  legal  fiction  which  forces  a  party  to  do  something 
which  he  has  never  agreed  to  do.  Thus,  in  Eemington  Paper  Com- 
pany V.  O'Dougherty,  96  N.  Y.  666,  affg.  32  Hun,  255,  it  was  held 
that  an  attachment  under  section  635  would  not  lie  in  an  action 
brought  under  section  3247  of  the  Code  to  recover  the  costs  of  a  former 
action  which  was  prosecuted  by  the  defendant  in  the  name  of  a  third 
person  for  her  benefit.  The  presiding  justice  (Smith)  at  General 
Term  said  that  "the  defendant  has  made  no  contract  with  the  plain- 
tiff or  its  assignors;  she  is  liable  only  by  the  provisions  of  the  statute.'* 
A  different  view  was  subsequently  taken  by  the  Court  of  Appeals  of 
an  action  upon  a  judgment  (The  Gutta  Percha  &  Kubber  Mfg.  Com- 
pany V.  Mayor,  108  jST.  Y.  276),  thus  making  a  distinction — the  point 
of  which  it  is  difficult  to  perceive — between  the  fiction  of  a  promise 
founded  upon  a  legislative  mandate  and  that  founded  upon  a  judicial 
mandate.  The  same  court  had  previously  held  that  a  judgment  was 
not  a  contract  within  the  meaning  of  an  act  reducing  the  rate  of 
interest,  but  reserving  from  its  operation  "any  contract  or  obliga- 
tion" made  prior  to  its  passage.  O'Brien  v.  Young,  95  IST.  Y.  428. 
It  had  also  held  in  The  People  ex  rel.  Dusenbury  v.  Speir,  77  N.  Y. 
144  that  the  phrase  "contract,  express  or  implied,"  as  used  in  the  old 
Non-imprisonment  Act  (Laws  of  1831,  chap.  300),  referred  to  a  con- 
tract resulting  from  the  voluntary  arrangement  of  the  parties,  and 
not  one  implied  by  law  for  the  purpose  of  giving  a  remedy  for  the 
wrong.  Judge  Danforth  said  in  tliat  case  that  the  implied  contract 
referred  to  in  the  statute  is  one  where  "the  intention  of  the  parties, 
if  not  expressed  in  words,  may  be  gathered  from  their  acts  and  from 
surrounding  circumstances:"  and.  whether  express  or  thus  implied, 
"must  be  the  result  of  the  free  and  bona  fide  exercise  of  the  will  pro- 
ducing the  'aggregatio  mentium'  the  joining  together  of  two  minds, 
essential  to  a  contract  at  common  law."  The  learned  judge  added : 
"'I'here  is  a  class  of  cases  where  the  law  prescri])es  the  rights  and 
liabilities  of  persons  who  have  not  in  reality  entered  into  any  contract 
at  all  with  one  another,  but  between  whom  circumstances  have  arisen 
which  make  it  just  that  one  should  have  a  right,  and  the  other  should 
be  subject  to  a  liability,  similar  to  ilio  riglits  and  lialiilitics  in  certain 
cases  of  express  contracts.   .    .    .   Therefore,  these  facts  arc  called 


CHAP.    III.]  AUGNER  V.  MAYOR.  83 

quasi  contracts,  because,  without  being  contracts,  they  produce  obli- 
gations in  the  same  manner  as  actual  contracts."  The  conclusion  there 
was  that  the  statute  did  not  embrace  obligations  of  the  latter  class. 
To  the  like  effect  are  Louisiana  v.  Mayor  of  New  Orleans,  109  U.  S. 
285  and  Steamship  Company  v.  Joliffe,  2  Wall.  450.  The  same  point 
was  directly  involved  in  Inliabitants  of  Milford  v.  Commonwealth,  144 
Mass.  64.  The  Superior  Court  was  given  jurisdiction  by  statute  "of 
all  claims  against  the  Commonwealth  which  are  founded  in  contract 
for  the  payment  of  money,"  and  it  was  there  held  that  this  jurisdiction 
did  not  extend  to  an  obligation  imposed  by  law  upon  the  Common- 
wealth to  reimburse  the  expense  incurred  by  a  town  in  the  support 
of  a  State  pauper.  Field,  J.,  observed  that  "a  contract  is  sornajimes 
said  to  be  implied  when  there  is  no  intention  to  create  a  contract,  and 
no  agreement  ^f  parties,  but  the  law  has  imposed  an  obligation  which 
is  enforced  as.il it  were  an  obligation  arising  ex  contractu.  In  such 
a  case  there  is  not  a  contract,  and  the  obligation  arises  ex  lege." 

'In  England  these  quasi  contracts  are  no  longer  contused  with  "im- 
plied-contracts."  Lord  Justice  Cotton,  in  Rhodes  v.  Rhodes,  44  Ch. 
Div.  94,  referring  to  the  nature  of  the  obligation  incurred  by  a 
lunatic  for  necessaries  supplied,  declared  that  "the  term  'implied  con- 
tract' is  a  most  unfortunate  expression,  because  there  cannot  be  a 
contract  by  a  lunatic."  "It  is  asked,"  observed  that  learned  judge, 
"can  there  be  an  implied  contract  by  a  person  who  cannot  himself 
contract  in  express  termF?  'the  answer  is  that  what  the  law  linpltes 
on  the  part  of  such  a  person  is  an  obligation,  which  has  been  improp- 
erly termed  a  contract,  to  repay  money  spent  in  supplying  neces- 
saries." See,  also.  Trainer  v.  Trumbull.  141  Mass.  527 ;  Cunningham 
I'.  Reardon,  98  id.  538 ;  Read  v.  Legard,  6  Exch.  636. 

Thus  it  is  apparent  that  the  complaint  nowhere  alleges  a  breach 
of  contract,  express  or  implied,  "to  pay  money  received  ...  by  the 
defendant."  The  latter  phrase  undoubtedly  means  to  pay  money 
received  by  the  defendant  for  the  plaintiff,  or  to  which  the  plaintiff, 
upon  the  receipt  of  such  money  by  the  defendant,  was  in  justice 
entitled.  It  does  not  mean  to  repay  to  the  plaintiff  money  received 
from  him  by  the  defendant  for  the  defendant's  own  use,  which,  owing 
to  circumstances  subsequently  occurring,  the  defendant  is  required  to 
return.  What  the  complaint  here_realh^  alleges  is  a  statutory  obliga- 
tion to  restore  to  the  plaintiff  part  of_the  monev  orilririally  received 
by  tlie  tlelondant  to  its  own  use  as  ,stfitutory:.tmstee  for  public  charitv ; 
whTch  part,  in  equity  and  justice,  as  decreed  by  the  Legislature,  should 
now  be  refunded  to  the  plaintiff.  That  right  of  action  does  not  depend 
at  all  upon  the  receipt  of  the  license  fee  by  the  defendant.  The  statute 
gives  it  whether  the  board  of  excise  did  its  duty  or  not ;  whether  that 
board  paid  the  fee  into  the  city  treasury  or  not ;  whether,  if  it  did.  the 
city  has  applied  the  fee  to  the  specified  charities  or  not.  The  right 
of  action  depends  solely  upon  the  two  facts,  first,  the  payment  of  the 


84  AUGNER  V.   MAYOR.  [BOOK    I. 

license  fee  to  the  board;  and,  second,  the  statutory  termination  of  the 
license.     Laws  of  189G,  chap.  113,  §  4. 

Our  conclusion  is  that  this  right  of  action  is  not  upon  a  contract 
express  or  implied,  within  the  meaning  of  that  phrase  as  used  in  sec- 
tion 420  of  the  Code;  that  it  is  not,  in  fact,  upon  a  contract  at  all, 
but  upon  the  fiction  of  a  promise  implied  by  law  from  statutory  com- 
pulsion; and  that  it  certainly  is  not  upon  an  im|J|ed  contract  to  pay 
money  received  by  the  defendant. 

It  follows  that  the  nature  of  the  plaintiff's  action  was  such  that  he 
could  not  take  judgment  without  application  to  the  court. 

The  order  appealed  from  should,  therefore,  be  reversed,  with  ten 
dollars  costs  and  disbursements,  and  the  motion  ior  judgment  granted, 
without  costs. 

Order  affirmed,  with  ten  dollars  costs  and  dislnirsements.^ 

'It  should  be  said  in  this  connection  that  whjle  the  U.  S.  Court  of  Claims 
recognizes  the  distinction  between  express  and  implied,  i.  e.,  quasi-contracts, 
it  does  not  limit  its  fiVfis^dTgliun— Hbased  as  it  is  b_y  AcL  of  Cong'less  Liputi 
"contracts  expressFcT orTniplicd" — 1n  express  ((nitntT^tSTir  contra(*ts  implied  in 
facL.  Aa  Llie  Cuuil~rs"expressly  forinrtrtm  to  take  jurisdictioiroi  actions  "sound- 
ing  in  tort,"  it  is  reasonable,  although  rather  unscientific,  that  the  court  should 
extend  its  jurisdiction  to  all  forms  of  contract  action  so  as  to  give  the  suitor 
a  remedy  against  the  Government.  Or  to  quote  from  the  Court:  "With  these 
questions  of  liability  decided  positively  and  negatively — against  the  Govern- 
ment and  for  the  Government — through  a  course  of  many  years,  it  seems 
to  the  Court  that  the  primary  subject  of  jurisdiction  must  now  be  regarded 
as  well  settled.  There  have  been  a  few  cases  in  the  Supreme  Court  wliere  the 
decision  was  against  jurisdiction — cases  requiring  equitable  remedies,  or 
cases  wherein  the  existence  of  a  contract  was  negatived  by  peculiar  facts  and 
circumstances — and  there  have  been  many  more  cases  where  the  decision  was 
against  liability  on  the  part  of  the  Government;  but  there  has  never  been  a 
case  in  form  ex  contractu  [as  distinguished  from  ex  delicto'\  in  which  the 
liability  of  the  Government  has  been  maintained  and  the  jurisdiction  of  the 
Court  denied."  Per  Nott,  C.  J.,  in  Ingram  v.  U.  S.  (1897)  32  Ct.  CI.  147,  169. 
This  case,  exhaustively  argTied  and  carefully  considered,  is  in  realitj'  a  short 
treatise  on  the  sources,  extent  and  nature  of  Quasi-Contract,  and  reference 
is  rrrade.^  it  as  a  whj)le.  Squarely  contra  is  the  ease  of  Milford  v.  Common- 
wealth (1887)   144  Mass.  G4.— Ed. 


CU-Vr.    111.]  TEKKIXSOX    I'.   GILl'OUD  AND   OTHERS.  85 

SECTION  II. 
Wherein  Quasi-Coxtuact  Differs  from  a  Tort, 


PERKINSON  V.  GILFORD  AND  OTHERS. 
^       King's  Bench,  1640. 
[CroU,  Charles,  539.] 

Debt  against  Gilford  and  others,  executors  of  William  Collier,  Esq., 
late  sheriff  of  the  county  of  Dorset,  for  two  and  twenty  pounds  ten 
shillings.  Whereas  the  plaintiff  had  recovered  in  the  Common  Pleas 
against  the  executor  of  William  Pawlott  a  debt  of  one  hundred  pounds, 
and  two  and  twenty  pounds  ten  shillings  for  damages,  the  debt  and 
damages  de  bonis  testatoris,  si,  &c.;  e,t  si  non,  the  said  two-and-twenty 
pounds  ten  shillings  de  bonis  propriis;  and  the  record  being  removed 
into  this  court,  the  plaintiff  had  a  f.eri  facias  directed  to  the  said 
William  Collier,  sheriff  of  Dorset,  for  the  levying  of  the  said  two-and- 
twenty  pounds  ten  shillings  damages  of  the  goods  of  the  said  execu- 
tor :  and  by  virtue  thereof  he  lc\led  the_said  two-and- twenty  pounds 
ten  shillings,  and  afterwards  died  without  paying,  &c. ;  whereupon  he 
demanded  it  of  the  said  executors,  and  they  had  not  paid  it,  per  quod 
actio  accrevit.  The  defendants  pleaded  7ion  debet;  and  found  against 
them. 

The  ForRTir  Objection,^  That  althmighjthe__action  lies  against 
the  sheriff  himself,  yet  it  lies  not  against_his_exccutors ;  for  the  non- 
]^;T^viiient  ii^  a  personal  wrong,  wherewith  his  executors  are  not  charge- 
alTle,  as  debt  upon  an  escape  lies  not  against  a  sheriff's  executors. 

But  Berkley,  Jones,  and  myself  (Brampston  being  absent) 
agreed,  that  the  action  well  lies.  And  for  the  fourth  objection  they 
held,  that  the  sheriff's  executors  are  as  well  chargeable  as  himself:  for, 
as  Jones  said,  there  is  a  diversity  where  the  sheriff  is  chargeable 
in  his  life  for  a  personal  tort  or  misfeasance;  there  his  personjs^nly 
chargeable,  and  there  actio  morifur  cum  persona:  but  where^he  is 
chin'jjT^)le  for  levying  of  money,  and  not  paying  it  over^_t]iiat  is  for 
a  duty;  and  tiiere,  if  he  dies,  his  executors^ are  chargeable  as  well  as 
1 11  nisei t;  which  is  the  reason,  that  for  an  escape  by  the  sheriff  his 
executors  are  not  chargeable :  but  there  would  be  great  mischief  if  the 
sheriff's  executors  should  not  l)e  lialile  in  this  case;  for  the  plaintiff 
had  a  duty  due  to  him  from  the  executors  of  Pawlett  the  first  defend- 
ant, who  paid  it  to  the  sheriff,  and  thereby  was  discharged  thereof;  and 
if  the  plaintiff"  should  not  recover  it  against  the  sheriff's  executors,  he 
should  be  without  remedy,  which  the  law  will  not  suffer.  Wherefore 
they  all  agreed,  that  the  action  well  lay.  And  rule  was  given  to  have 
judgment  entered,  unless,  &c. 

'Only  so  nuuh  of  the  case  is  given  as  relates  to  this  objection. — Ed. 


86  BISHOP  OF  WINCHESTER  V.  KXIGIIT.  [BOOK    I. 

ANONYMOUS. 

Trinity  Term,  King's  Bench,  1700. 

[12  Modern,  415.] 

Holt,  Chief  Justice.  Trover  lies  for  the  master  for  a  ticket  or  other 
writing  entitling  his  apprentice  to  money  earned  by  him  during  the 
apprenticeship.^ 

But  here  the  troueiLjmis  againsjtjhc  executor  of  the  apprentice  for  a 
ticket  given  out  after  the  death  of  the  apprentice,  for  money  earned 
by  him  during  the  apprenticeship;  and  because  it  never  was  in  the 
apprentice's  possession,  the  action  was  not  maintainable ;  but  after  the 
executor  receives  the  money,  the  master  may  have  amim'P^^^  ^"^  so 
much  ImoneyTecervedrWTns' use. 


BISHOP  OF  WINCHESTEK  v.  KNIGHT. 

High  Court  or  Chancery,  1717. 

[1  Peere  Williams,  406.] 

One  held  customary  lands  of  the  Bishop  of  Winchester,  as  of  his 
manor  of  Taunton-Dean  in  Somersetshire,  in  which  lands  there  was  a 
copper-mine  that  was  opened  by  the  tenant,  who  dug  thereout,  and  sold 
great  quantities  of  copper  ore,  and  died,  and  his  heir  continued  digging 
and  disposing  of  great  quantities  of  copper  ore  out  of  the  said  mine. 

Lord  Chancellor  [Cow^per].  It  would  be  a  reproach  to  equity,  to  say, 
where  a  man  has  taken  my  property,  as  my  ore,  or  timber,  and  disposed 
of  it  in  his  lifetime,  and  dies,  that  in  this  case,  I  must  be  without 
remedy. 

It  is  true,  as^o  the  trespass  of  breaking  up  mppflnw  nr  n^ipiVnt 
pasture-ground^it  dies  with  tlic  person ;  but  asJLQ-iliG-4>ro])orty  of  the 
Qie-Qr.JIm"5er7it  would  be  clear  even  at  law^  ifjj;_enmp  to  t1ioj^en- 
tor^Jiands,  that  trover  woul^lie  for  it ;  and  if  it  Imt;  homi  flif^i^O'^i'd 
Qfjn_the_testator^s  lifetime,  the  executor,  if_assej;s_aj:£-b&r-oii^«hi.  to 
aiiaa:er_fgr  jj ;  but  it  is  strongeTtfl^thi^  case7  by  reason  that  the  tenant 
is  a  sort  of  a  fiduciary  to  the  Lord,  and  it  is  a  breach  of  the  trust 
which  the  law  reposes  in  the  tenant,  for  him  to  take  away  the  property 
of  the  Lord ;  so  that  I  am  clear  of  oj^inion,  the  executor  in  such  case, 
is  answerable. 

'See  Barber  v.  Dennis,  Salk.  68;  Hill  v.  Allen,  Vezcy,  83;  1  Burn's  Justice, 
17th  ed.  90. — Reporter's  note. — Ed. 


CHAP.    III.]  HAMBLY  V.   TROTT.  87 

As  to  the  evidence  that  the  tenant  might  do  one  sort  of  waste,  as 
to  cut  down  and  dispose  of  the  timber,  this  might  be  by  special  grant ; 
but  it  is  no  evidence  that  the  tenant  has  a  power  to  commit  any  other 
sort  of  waste,  (viz.)  waste  of  a  different  species,  as  that  of  disposing 
of  minerals;  but  a  custom  empowering  the  tenants  to  dispose  of  one 
sort  of  mineral,  as  coals,  may  be  an  evidence  of  their  right  to  dispose 
of  another  sort  of  mineral,  as  lead  out  of  a  mine. 

But  this  question  being  doubtful,  and  at  law,  let  the  Bishop  bring  his 
action  of  trover  as  to  the  ore  dug  and  disposed  of  by  the  present 
tenant. 


HAMBLY  AND  ANOTHER,  ASSIGNEES  OF  MOON  v.  TKOTT, 
ADMINISTEATOR. 

Hilary.    King's  Bench,  1776. 

[Cowper,  371.] 

In  trover  against  an  administrator  cum  testamento  annexo,  the 
declaration  laidTlie  conversion  by  the-testator  in  his  lifetime.  Plea, 
that  the  testator  was  not  guilty.    Verdict  for  the  plaintiff. 

Mr.  Kerhy  had  mo^jodinjirrest  of  judgment  upon  the  ground  of  this 
being  a  personal  tort,  which  dies  with  the  person ;  upon  the^auTlTorTly 
oT  Collins  v'.  i'ennerell,  Trin.  22,  33,  Geo.  2,  B.  R.,  and  had  a  rule  to 
shew  cause. 

Mr.  Buller  last  term  shewed  cause. — The  objection  made  to  the 
plaintiff's  title  to  recover  in  this  case  is  founded  upon  the  old  maxim 
of  law  which  says,  actio  personalis  moriiur  cum  persona.  But  that 
objection  does  not  hold  here;  nor  is  the  maxim  applicable  to  all  per- 
sonal actions;  if  it  were,  neither  debt  nor  assumpsit  would  lie  against 
an  executor  or  administrator.  If  it  is  not  applicable  to  all  personal 
actions,  there  must  be  some  restriction ;  and  the  true  distinction  is 
this;  where  the  action  is  founded  merely  upon  an  injury  done  to  the 
person,  and  no  property  is  in  question,  there  the  action  dies  with  the 
person,  as  in  assault  and  battery,  and  the  like.  But  where  property 
is  concerned,  as  in  this  case,  the  action  remains  notwithstanding  the 
death  of  the  party. 

Trover  is  not  like  trespass,  but  lies  in  a  variety  of  cases  where  a 
party  gets  the  possession  of  goods  lawfully.  It  is  founded  solely  in 
property,  and  the  value  of  the  goods  only  can  be  recovered.  Therefore, 
the  damages  are  as  certain  as  in  any  action  of  assumpsit.  As  to  the 
case  of  Collins  v.  Fennerell,  it  is  a  single  authority  and  was  not  argued  ; 
therefore,  most  probably  was  determined  simply  on  the  old  maxim. 
But  Savile  40,  case  90,  is  directly  the  other  way. 

Where  the  damages  are  merely  vindictive  and  uncertain,  an  action 
will  not  lie  against  an  executor;  but  where  the  action  is  to  recover 


88  HAMBLY   V.   TROTT.  [BOOK    I. 

property,  there  the  damages  are  certain,  and  the  rule  does  not  hold. 
This  is  an  action  for  sheep,  goats,  pigs,  oats,  and  cyder  converted  by 
injustice  to  the  use  of  the  person  deceased ;  therefore,  this  action  does 
not  die  with  the  person. 

Mr.  Kcrhy  contra  for  the  defendant  cited  Carter  v.  Fossett,  Palm. 
330,  wliere  Jones,  Justice,  said,  "that  when  the  act  of  the  testator 
includes  a  tort,  it  does  not  extend  to  the  executor;  but  being  personal 
dies  with  him ;  as  trover  and  conversion  does  not  lie  against  an  execu- 
tor for  trover  fait  par  luy."    Collins  v.  Fennerell,  above  cited. 

Here,  the  goods  came  to  the  hands  of  the  testator,  and  he  converted 
them  to  his  own  use.  Trover  is  an  action  of  tort,  and  conversion  is  the 
gist  of  the  action.  No  one  is  answerable  for  a  tort  but  he  who  commits 
it ;  consequently  this  action  can  only  be  maintained  against  the  person 
guilty  of  such  conversion.  But  here  the  conversion  is  laid  to  be  by  the 
testator.  Therefore  the  judgment  must  be  arrested.  The  distinction 
that  has  been  taken  in  the  books  is,  that  the  action  may  be  maintained 
by  an  executor  but  not  against  him.  Hughes  v.  Eobotliam ;  Le  Mason 
V.  Dixon,  Popham,  31. 

Lord  Mansfield.  If  this  case  depends  upon  the  rule,  actio  per- 
sonalis moritur  cum  persona,  at  present  only  a  dictum  has  been  cited 
in  support  of  the  argument.  Tr©*eiJs.in  fp^m  of_a  tort,  but  in  sub- 
stance an  action  to  try  property. 

Mr.  Kerhy.  The  executor  is  answerable  for  all  contracts  of  the 
testator,  but  not  for  torts. 

Lord  Mansfield.  The  fundamental  point  to  ])e  considered  in  this 
case  is,  whether  if  a  man  gets  the  property  of  another  into  lus  hands 
it  maybe  recovered  against  his  executors  in  the  form  of  an  action 
of  trover.  wTiere  there  is  an_actirm  agm'Tisf  tVip  pvppiito^rs  in  anotlier 
form.  It  is  merely  a  distinction  whether  the  relief  shall  be  in  this  form 
or  that.  Suppose  the  testator  had  sold  the  sheep,  etc.,  in  question; 
in  that  case  an  action  for  money  had  and  received  would  lie.  Suppose 
the  testator  had  left  them  in  specie  to  the  executors,  the  conversion 
must  have  been  laid  against  the  executors.  There  is  no  difficulty  as  to 
the  administration  of  the  assets,  because  they  are  not  the  testator's  own 
property.  Suppose  the  testator  had  consumed  them,  and  had  eaten  the 
sheep ;  what  action  would  have  lain  tlion  ?  Is  the  executor  to  get  off 
altogether?  I  shall  be  very  sorry  to  decide  that  trover  will  not  lie,  if 
there  is  no  other  remedy  for  the  right. 

Aston,  Justice.  Suppose  the  executor  had  had  a  counter  demand 
against  tlie  plaintiff,  he  could  not  have  set  it  off  in  trover;  but  in  an 
action  for  money  had  and  received,  he  might.  If  these  things  had 
been  left  by  the  testator  in  specie,  the  conversion  must  have  been  laid 
to  be  by  the  executor.  There  seems  to  be  but  little  difference  between 
actions  of  trover  and  actions  for  money  had  and  received.  As  at 
present  advised,  I  incline  to  think  trover  maintainable  in  this  case, 

AsiiiiURST,  Justice.    The  maxim  does  not  hold  as  a  universal  propo- 


CHAP.    III.]  HAMBLY   V.    TROTT.  89 

sition,  because  assumpsit  lies.  As  to  the  case  of  Collins  v.  Fennerell, 
all  the  court  considered  it  as  unargued,  and  given  up  rather  pre- 
maturely by  Mr.  Henley. 

Lord  Mansfield.  The  criterion  I  go  upon  is  this:  Can  justice 
possibly  be  done  in  any  other  form  of  action?  Trover  is  merely  a  sub- 
stitute of  the  old  action  of  detinue.  2  Keb.  503;  Ventr.  30;  Sir  T, 
Eaym.  95.     Tlie  court  ordered  it  to  stand  over. 

Upon  a  second  argument  this  day,  Mr.  Duiuiing  cited  Cro.  Car.  5  40 ; 
1  Sid.  88. 

Lord  Mansfield.  Many  difficulties  arise  worth  consideration.  An 
action  of  trover  is  not  now  an  action  ex  maleficio,  though  it  is  so  in 
form ;  but  it  is  founded  in  property.  If  the  goods  of  one  person  come 
to  another,  the  person  who  converts  them  is  answerable.  In  substance, 
trover  is  an  action  of  property.  If  a  man  receives  the  property  of 
another,  his  fortune  ought  to  answer  it.  Suppose  he  dies,  are  the 
assets  to  be  in  no  respect  liable?  It  will  require  a  good  deal  of  con- 
sideration before  we  decide  that  there  is  no  remedy. 

Aston,  Justice.  The  rule  is,  quod  oritur  ex  delicto,  non  ex  contractu 
shall  not  charge  an  executor.  Bac.  Abr.  444,  445.  tit.  Executors 
and  administrators.  2  Bac.  Abr.  280,  tit.  Trover,  ^^^^ere  goods 
come  to  the  hands  of  the  executor  in  specie,  trover  will  lie;  where 
in  value,  an  action  for  money  had  and  received.  But  the  difficulty 
with  me  is,  that  here  it  does  not  appear  whether  the  goods  came  to 
the  hands  of  the  defendant  in  specie  or  in  value. 

Cur.  advisare   vnU. 

Afterwards,  on  Monday,  February  12th,  in  this  term.  Lord  ^Ians- 
FiELD  delivered  the  unanimous  opinion  of  the  court  as  follows : — 

This  w^as  an  action  of  trover  against  an  administrator,  with  the  will 
annexed.  The  trover  and  conversion  were  both  charged  to  have  been 
committed  by  the  testator  in  his  lifetime;  the  plea  pleaded  was,  that 
the  testator  was  not  guilty.  A  verdict  was  found  for  the  plaintiffs, 
and  a  motion  has  been  made  in  arrest  of  judgment,  because  this  is  a 
tort,  for  wliich  an  executor  or  administrator  is  not  liable  to  answer. 

The  maxim,  actio  personalis  moritur  cum  persona,  upon  which  the 
objection  is  founded,  not  being  generally  true,  and  much  less  uni- 
versally so,  leaves  the  law  undefined  as  to  the  kind  of  personal  actions 
which  die  with  the  person,  or  survive  against  the  executor. 

An  action  of  trover  being  in  form  a  fiction,  and  in  substance  founded 
on  property,  for  the  equitable  purpose  of  recovering  the  value  of  the 
plaintiff's  specific  property,  used  and  enjoyed  by  the  defendant,  if  no 
other  action  could  be  brought  against  the  executor,  it  seems  unjust 
and  inconvenient  that  the  testator's  assets  should  not  be  liable  for 
the  value  of  what  belonged  to  another  man,  which  the  testator  had 
reaped  the  benefit  of. 

We  therefore  thought  the  matter  well  deserved  consideration.  We 
have  carefully  looked  into  all  the  cases  upon  the  subject.    To  state  and 


90  HAMBLY   V.   TROTT.  [BOOK   I. 

go  through  them  all  would  be  tedious,  and  tend  rather  to  confound 
than  elucidate.  Upon  the  whole,  I  think  these  conclusions  may  be 
drawn  from  them. 

First,  as  to  actions  which  survive  against  an  executor,  or  die  with  the 
person,  on_  account  of  the  cause  of  action.  Secondly,  as  to  actions 
which  survive  against  an  executor,  or  die  with  the  person,  on  account 
of  the  form  of  action. 

~Ks  to  the"  first  ;"where_the  cause  of  actionjs  money  due,  or  a  contract 
tojje  performed,  gain  or  acquisition  of  thp'tiktator  by  the  work  and 
labor_or_property  of  another,  or  a  promise  of  the  testator  express  or 
implied ;  _where_  these  are  the  causes  of  action,  the  action  survives 
against  the_executor.  But  where  the  cause  ora^ctronls~a~tuil,  ui  arises 
ex  delicto,  as  is  said  in  Hole  v.  Blandford,  Sir  T.  Eaym.  ^TT^upposed 
to  be  by  force  and  against  the  King's  peace,  there  the  nptinn  djes^ — as 
battery,  false  imprisonment,  trespass,  words,  nuisance,  obstructing 
lights,  diverting  a  water-course,  escape  against  the  sheriff,  and  many 
other  cases  of  the  like  kind. 

Secondly,  as  to  those  which  survive  or  die,  in  respect  of  the  form  of 
action.  In  some  actions  the  defendant  could  have  waged  his  law ;  and 
therefore,  no  action  in  that  form  lies  against  an  executor.  But  now 
other  actions  are  substituted  in  their  room  upon  the  very  same  cause, 
which  do  survive  and  lie  against  the  executor.  NpLiictiQn.Jw;here  in 
form  the  declaration  must  be  quare  vi  et  armis,  et  contra  pacem,  or 
w-liere  the  plea  must  be,  as  in  this  case,  that  the  testator  was  not  guilty, 
canli^^gaTnst  the~executor.  Upon  the  fVice  of  the  record,  the"  cause 
of  action  arises  ex  delictojimd  all  private  criminal  injuries  or  wrongs, 
as  well  as  all  public  crimes,  are  buried  with  the  offender. 

But  in  most,  if  not  in  all  the  cases jwhere  _trover  lies  against  the 
testatof7~anqthcx  action  might  be  brought  against  t^Iic_cxecutor  which 
wouTd"answer  the  purpose.  .  An  action  on  the  custom  of  the  realm 
agamSt  a  cummuTrcarrfeFls  for  a  tort  and  supposed  crime;  the  plea 
is  not  guilty ;  therefore,  it  will  not  lie  against  an  executor.  But 
assumpsit;  which  is  another  action  for  the  same  cause,  will  lie.  So  if  a 
man  take  a  horse  from  another,  and  bring  him  back  again,  an  action 
of  trespass  will  not  lie  against  his  executor,  though  it  would  againsi 
him ;  but  an  action  for  the  use  and  hire  of  the  horse  will  lie  against 
the  executor.^ 

^"Lot  lis  now  suppose  the  case  of  a  person  who  takes  possession  of  and 
uses  another's  horse,  wagon  and  team,  or  threshing  machine,  without  his 
knowledge,  consent,  or  authority.  In  such  a  case,  the  laAV  provides  common  law 
remedies,  in  which  the  defendant  is  afforded  the  constitutional  right  of  a 
trial  hy  jury.  In  such  a  case,  the  owner  may  recover  damages  in  trespass  for 
the  tort,  or  he  may  waive  the  tort,  and  sue  in  assumpsit  on  the  implied 
promise  to  pay  what  is  equitably  due  for  tlie  use  and  possession  of  the  prop- 
erty," per  Hughes,  J.,  in  Rayles  v.  Rielimond,  Fredericksburg  &  Potomac 
R.  R  Co.   (187!))  4  Ban.  &  A.  2:?!),  245. 

In  the  interesting  case  of  Stockett  v.  Watkins  (18130)  2  G.  &  J.  32G,  it  was 


CHAP.    III.]  HAMBLY  V.   TROTT.  91 

There  is  a  case  in  Sir  Thomas  Raymond,  71  (Bailey  v.  Birtles 
et  uxor,  executrix  of  llichard  Bailey),  which  sets  this  matter  in 
a  clear  light:  There,  in  an  action  upon  the  case,  the  plaintiff  de- 
clared, "that  he  was  possessed  of  a  cow,  which  he  delivered  to  the 
testator,  Richard  Bailey,  in  his  lifetime,  to  keep  the  same  for  the  use 
of  him,  the  plaintiff;  which  cow  the  said  Richard  afterwards  sold,  and 
did  convert  and  dispose  of  the  money  to  his  own  use ;  and  that  neither 
the  said  Richard  in  his  life,  nor  the  defendant  after  his  death,  ever 
paid  the  said  money."  Upon  this  state  of  the  case,  no  one  can  doubt 
but  the  executor  was  liable  for  the  value.  But  the  special  injury 
charged  obliged  him  to  plead  that  the  testator  was  not  guilty.  The 
jury  found  him  guilty.  It  was  moved  in  arrest  of  judgment,  because 
this  is  a  tort  for  which  the  executor  is  not  liable  to  answer,  but  moritur 
cum  persona.  For  the  plaintiff  it  was  insisted,  that  though  an  executor 
is  not  chargeable  for  a  misfeasance,  yet  for  a  non-feasance  he  is ;  as  for 
non-payment  of  money  levied  upon  a.'  fieri  facias,  and  cited  Cro.  Car. 
539 ;  9  Co.  50  b,  where  this  very  difference  was  agreed ;  for  non-feasance 
shall  never  be  vi  et  armis,  nor  contra  pacem.  But  notwithstanding 
this  the  court  held  "it  was  a  tort,  and  that  the  executor  ought  not  to  be 
chargeable."  Sir  Thomas  Raymond  adds,  "vide  Savillo  40,  a  differ- 
ence taken."  That  was  the  case  of  Sir  Henry  Sherrington,  who  had 
cut  down  trees  upon  the  Queen's  land,  and  converted  them  to  his  own 
use  in  his  lifetime.  Upon  an  information  against  his  widow,  after  his 
decease,  Man-wood,  Justice,  said,  "In  every  case  where  any  price  or 
value  is  set  upon  the  thing  in  which  the  offence  is  committed,  if  the 
defendant  dies  his  executor  shall  be  chargeable ;  but  where  the  action 
is  for  damages  only,  in  satisfaction  of  the  injury  done,  there  his  execu- 
tor shall  not  be  liable."  These  are  the  words  Sir  Thomas  Raymond 
refers  to. 

Here  therefore  is  a  fundamental  distinction.  I^jt  is  a  sort  of  injury 
by  which  the  offender_firqnirp^  no  pin  to  himself  at  the  expense  of  the 
sufferer,  as  beating  or  imprisoning  a  man,  etc..  there  the  person  injured 
has_onlv  a  reparatioTLio£-th.C-ir//'r:///.;u.in--damage;^  to^hc.  assessed  by  a 
jtTTT.  But  wWoJ^es'^l'^g  tliP  prime  prnperty  is  acquired  which  benefits 
il-^n  fncfifor,  tbPTP  iiu  actjon  for  the  value  of  the  property  shall  survive 
against  the  oxeci-itor.  As  for  instance,  the  executor  shall  not  be  cliarge- 
able  for  the  injury  done  by  his  testator  in  cutting  down  another  man's 
trees,  but  for  the  benefit  arising  to  this  testator  for  the  value  or  sale 
of  the  trees  he  shall. 

So  far  as  the  tort  itself  goes,  an  executor  shall  not  he  liable;  and 
therefore  it  is,  that  all  public  and  all  private  crimes  die  with  the 

held  that  whore  negroes  tortio\isly  possessed  were  returned  to  the  owner,  the 
hitter  niiplit  waive  the  tort  and  reeover  the  value  for  their  time  in  assumpsit. 
As  this  was  a  case  of  Administrator  ai^ainst  Administrator,  it  would  seem  tliat 
Lord  jMan.sfielo's  dictum  is  not  witliout  adjudged  support.  See  also  MeSorley 
V.  Faulkner  (1802)    IS  N.  Y.  Supp.  400.— Ed. 


92  HAMBLY   V.   TROTT.  [BOOK   I. 

offender,  and  the  executor  is  not  chargeable ;  but  so  far  as  the  act  of 
the  offender  is  beneficial,  his  assets  ought  to  be  answerable;  and  his 
executor  therefore  shall  be  charged. 

There  are  express  authorities  that  trover  and  conversion  does  not  lie 
against  the  executor;  I  mean,  where  the  conversion  is  by  the  testator. 
Sir  William  Jones,  173,  17-i,  Palm.  330.  There  is  no  saying  that  it 
does. 

The  form  of  the  plea  is  decisive,  viz.,  that  the  testator  was  not 
guilty;  and  tbe_js:^np  is  tn  try  the  crnilt  nf  t1ie  testator.  And  no 
mischief  ijdone ;  for  so  far  as  the  caus^*  ^f  a^^-inn  rlnot;  imf  t^yi^o^- 
dpMrinj)r(ir  mnl^^cio  of  the  testator,  but  is  founded  in  a  duty  which 
the  testator  owes  the  plaintiff,  upon  pirinciples  of  civil  obligation, 
another  form  of  action  may  be  brouglrtj  as  an  action  for  monev"~had 
aniLr£C£i5^d.  Therefore,  we  are  all  of  opinion  that  the  judgment  must 
be  arrested. 

Judgment  arrested} 

'In  Kirk  v.  Todd  (1882)  L.  R.  21  Ch.  D.  484,  488,  action  was  begun  against 
one  Todd,  who  died,  and  more  than  six  months  thereafter  the  action  was 
continued  against  his  executors. 

Sir  George  Jessell,  M.  R.  :  "I  cannot  help  feeling  that  this  is  a  very 
hard  case,  and  that  no  doubt  is  the  reason  why  the  appeal  was  brought,  but 
we  must  not  allow  hard  cases  to  make  bad  law.  The  plaintiffs  sued  the 
original  defendant  for  damages  and  an  injunction.  It  was  an  action  on  a 
simple  tort.  It  did  not  appear  that  the  defendant  had  got  any  benefit  by 
fouling  the  plaintiff's  stream;  he  had  only  injured  the  plaintiff.  As  I  under- 
stand the  rule  at  common  law,  it  was  this — you  could  not  sue  executors  for  a 
wrong  committed  by  their  testator  for  which  you  could  only  recover  unliqui- 
dated damages.  That  rule  has  never  been  altered  except  by  the  Act  3  &  4 
Will.  4,  c.  42,  which  allowed  the  executors  to  be  sued  in  certain  cases,  but 
with  the  limitation  that  the  injury  must  have  been  committed  not  more  than 
six  months  before  the  death  of  the  testator.  That  was  not  so  here;  therefore 
the  statute  did  not  apply,  and  the  rule  of  the  common  law  remained  in  its 
simplicity." 

But  if  the  tortfeasor  sustain  a  fiduciary  relation,  courts  of  equity  allow  the' 
action  to  survive  agains.>  the  estate. 

In  Warren  v.  Para  Rubber  Shoe  Co.  (1896)  IGG  Mass.  197,  104,  it  is  said: 
"We  may  assume  that  the  injury  to  the  corporation  and  the  benefit  to  the 
estate  of  Coolidge  were  too  indirect  to  furnish  of  themselves  a  reason  for 
the  survival  of  the  remedy,  Read  v.  Hatch,  19  Pick.  47;  Cutting  v.  Tower, 
14  Gray,  18.3;  Cummings  v.  Bird,  115  Mass.  346;  Leggate  v.  Moulton,  1L5  Mass. 
552;  Cutter  v.  Hamlen,  147  Mass.  471;  Phillips  v.  Homfray,  24  Ch.  D.  439, 
454,  463;  Finlay  v.  Chirney,  20  Q.  B.  D.  494.  But  where  a  relation  has 
ex i Sited  which  involved  the  performance  of  certain  duties  for  pay,  and  especially 
where  that  relation  wa^~or~a  fiduciary  character  and  tliere  was  a  failure  to 
perform  those  duties,  the  remedy  has  been  held  to  sjiryiye.  The  decision  most 
closely  Tirp(5tnt  of  any  wlncTi  has  come  lo  our  notice  is  Concha  v.  Murrieta, 
40  Ch.  D.  543.  But  this  exception  to  the  application  of  the  maxim.  Actio 
personalis  moritur  cum  persona,  has  often  been  stated.    Batthyany  v.  Walford, 


CHAP.    III.]  OSBOUN    V.    BELL.  93 

OSBORX  V.  BELL. 

Supreme  Court  of  New  York,  1848. 
[5  Denio,  370.»] 

A:5;iL.m:^T,  tried  at  the  Rensselaer  circuit  in  November,  1844,  before 
J'akkeu.  Cir.  J.  The  suit  was  originally  commenced  in  January,  1843, 
by  the  plaintiff's  intestate,  but  he  dying  after  issue  joined,  the  present 
pLajntiff  was  appointed  his  administratrix,  and  by  an  order  of  the  court 
was  substituted  as  plaintiff.  The  declaration  contained  the  general 
counts  in  indebitatus  assumpsit  for  goods  sold,  and  money  had  and 
received.  Plea,  non-assumpsit.  The  plaintiff  claimed  to  recover  for 
certain  factory  machinery,  namely,  a  lathe  and  two  hat  carders. 

By  the  Court,  Beardsley,  Ch.  J.  Assuming  that  the  lathe  and  bat 
carders,  when  levied  on  by  the  defendant,  were  the  property  of  G.  K. 
Osborn,  an  action  of  trespass,  if  the  taking  was  tortious,  would  have 
been  an  appropriate  remedy  for  him  while  living,  and  after  his  decease 
a  similar  action  might  have  been  brought  by  the  plaintiff  as 
administratrix.  The  last  proposition  was  not  true  at  common  law, 
the  maxim  being  actio  personalis  morilur  cum  persona  (1  Ch.  PI.  78, 
9,  ed.  1837;  Broom's  Legal  Max.  400)  ;  but  the  statute  is  explicit  that 
trespass  may,  in  such  case,  be  brought  by  the  personal  representative. 

36  Ch.  D.  209,  279-281;  Phillips  v.  Homfray,  24  Ch.  D.  439,  465;  Morgan  v. 
Ravey,  6  H.  &  N.  205;  Sollars  v.  Lawrence,  Willes,  413,  421." 

In  the  ease  alhided  to  in  the  passage  quoted.  Concha  v.  Murrieta  (1889) 
L.  R.  40  Ch.  D.  543,  553,  it  is  said:  "It  was  urged  upon  us  that  to  allow 
this  claim  would  be  coatrary  to  the  maxim  of  the  English  law,  'Actio  personalis 
moriiur  cum  persona.'  lt^_ia_triie  that  no  action  for  a  tort  can  be  revived  or 
commenced  against  the  rpprespntatives_of  t^iie  person  who  committed  it ;  but 
the  case  is  quite  diffcrent_Avhere  the  act  is  not  a  mere  tort,  but  is  a  breach 
of  a  quasi  contract,  where  the  claim  is  fi)unded  on  breach  of  a  fiduciary  rela- 
tion, or  on  failure^to  perform  a  duty.  Here  the  father,  though  I  do  not 
call  him  a  trustee,  was  in  a  position  in  which  he  owed  duties  of  a  fiduciary 
character  to  his  daughter.  In  the  very  careful  judgment  of  Lord  Justice 
BowEN,  in  Phillips  v.  Homfray,  24  Ch.  I>.  439,  cases  depending  on  breach  of 
contract,  express  or  implied,  are  excepted  from  the  judgment.  Here  there 
is  what  we  call  quasi  contract,  the  law  implying  a  contract  that  a  man  will 
faillifully  perform  the  duties  which  he  has  undertaken.  Juan  Jose  Concha 
undertook  a  duty  in  consequence  of  his  position,  and  losses  arising  from  his 
breach  of  it  can  be  followed  up  against  his  estate."  And  see  further  Houghton 
V.  Butler  (1890)   100  Mass.  547;  Parker  v.  Simpson  (1902)   180  Mass.  334.  343. 

For  a  case  of  a  quasi-contractual  duty  arising  from  a  position  not  unlike 
that  in  Concha  v.  Murrieta,  supra,  and  for  the  efTect  of  the  statute  of  limita- 
tions upon  such  duty,  see  Wilson  r.  Towie  (1848)   19  X.  H.  244,  ante. — Ed. 

'S.  C.  49  Am.  Dec.  275,  with  note.— En. 


94  OSBORN   V.   BELL.  [BOOK   I. 

2  R.  S.  114,  §  4.  The  present,  however,  is  not  an  action  of  trespass, 
but  assumpsit,  and  if  that  remedy  existed  in  favor  of  the  intestate  there 
can  be  no  doubt  it  survived  to  the  present  plaintiff  as  administratrix. 
The  declaration  contained  general  counts  for  goods  sold  and  money 
had  and  received,  and  it  appeared  on  the  trial  that  the  rlpfenrlmitj  ^o 
^^^ti^^j^'S'^^f^-^'^^^  ^^  ^'«^e^i  ^'TJ  spT'^'^^1  anrl^V]  the  property  in  question 
to  satisfy  certam  taxes  ~w-hich^i±.jvasjiis  duty  to  collect.  Itwasnot 
shown  that  the  defendant  received  any  money  Tm  the"  sale ;  nor  was 
th^  riglTTto  maintain  this~action  placed  on  the  ground  tliat  the  plain- 
tiff might  waive  the  tort  and  bring  assumpsit  for  the  money  thus 
received  by  the  defendant.  Theggneral  rule,  where  property  has  been 
wrongfully  taken  and  converted  into  money,  certainly  is,  that  the  owner 
of  the  property_max^  waive  the  tort  and  bring  his  action  directlylor 
th£jncmey,i£cdz£dj3yJ.b£_wrongflopr7aan(rthe^  of  Young  vT Mar- 
shall, 8  Bing.  43,  is  a  strong  authority  for  the  position  that  this  may  be 
done,  under  some  circumstances,  where  the  property  was  taken  and  sold 
by  a  public  officer  in  the  supposed  performance  of  his  duty,  the  money 
having  been  paid  to  and  received  by  him  in  that  character  and  capacity. 
It  is  not  unlikely  that  the  money  bid  on  the  sale  of  this  property  was 
paid  to  the  defendant  as  collector,  and,  in  that  event,  he  also,  probably, 
paid  over  the  whole  or  some  part  thereof  in  satisfaction  of  the  tax 
for  which  the  sale  had  been  made.  If  this  action  had  been  brought 
for  the  money  so  received  by  the  defendant,  as  collector,  the  fact  that 
he  had  notice,  before  the  money  was  paid  over,  of  the  claim  of  the 
intestate  to  the  property  sold,  might  have  been  indispensable  in  order 
to  show  a  right  of  action  for  the  money.  But  in  all  these  respects 
this_billof-  exceptions  is  deficient :  it  does  not  show  that  the  defendant 
received  or  paid  over  any  money,  or  thaThe  ever  heard  of  the  claim  of 
the  intestate,  until  this~actimi  was  brought  The  case  then7"gn"  f ai  »s 
'respects  a  right  to  recover  for  money  iiad^nd  receivedTisTjuTpartiaTIy 
pres^ntei^ancrthat  queslion"not~being -formally  made  on-the-4yiai,  will 
be"~TtTw»issed  without  the  expression  of  any  opinion  upon  it. 


jin_exc_e]2tjon  was  taken  by  the  defendant,  and 


this  presents  the  point  to  be  considered. 

There  was  no  pretence  on  the  trial  or  the  argument,  that  the  de- 
fendant ever,  in  fact,  made  a  purchase  of  these  goods,  or  expressly 
agreed  to  pay  for  them.  He  was  a  collector  of  taxes,  and  as  such 
seized  and  sold  the  goods  to  satisfy  a  tax  in  his  hands  for  collection. 
As_to  the  intestate,  what  was  done  may  have  been  wrongful,  but  there 
wfl^R  pnthing  1iVp_a  purchn^e.  in  fnet.  of  the-goods  by  the  defendanl. 
He  was  not  acting  in  a  personal  and  private  capacity,  but  as  a  public 
officer;  and  although  what  he  did  may  have  been,  as  to  the  intestate, 
wholly  unauthorized,  it  was  done  for  the  public  and  not  for  the  benefit 
and  advantage  of  the  defendant.  The  question  then  arises^ can  a 
pi'Tj^tin,  whose-ffooda  arc  wrongfully-taken  by  a  public  officer,  .acting 


CHAr.    III.]  OSBORN   V.   BELL.  95 

as  such  and  not  for  his  own  benefit,  waivf^  fVip  fort  nnd  mm'nt,?iin 
assnnrpsit  for  goods  soldX 

It  is  entirely  settled  that  where--gnods  are  wrongfull^taken  and 
CQUxfiited  intomoney  by  a  person  acting  for  his  own  benefit,  the  owner 
max_waixeJ:he  tort  and-briag  assumpsit  for  iJiagnonev  thusTeceived 
hy  UiP  wrnngrlopr  Chit,  on  Cont.  G07,  23,  34,  ed.  18T27T5rcmTrP. 
3;  1  Hill,  240,  note;  3  id.  283,  note;  5  id.  584,  note,  and  the  authori- 
ties referred  to  in  these  books. 

There  are  also  resjyx^ta^e^authorities  for  the  position  that  where 
goods  haye_thus  Wti  tnVpn^  bnt  nnt  tnrnpfl  infQ_money^the  owner 
niay_  waive  the  tort,  and  recover  as  for  goods  sold.  Hill  v.  Davis, 
3  N.  H.  384,  and  the  books  last  above  referred  to.  "Rnt  upon  this  point 
the  authorities_are,nQi  agreed,  some  holding  that  the  tort  can  only  be 
waived  where  the  property  has  been  sold  and  converted  into  money  by 
the  wrongdoer,  in  which  case  the  owner  may  affirm  the  sale  and  sue 
for  the  money  as  had  and  received  to  his  use.  Jones  v.  Hoar,  5  Pick. 
285 ;  Willet  v.  Willet,  3  Watts,  277;  Bennett  v.  Francis,  2  B.  &  P.  554; 
see  also  the  books  above  referred  to.  It  is  unnecessary  in  this  case 
to  say  how  that  point  should  be  determined,  and  no  opinion  is  intended 
to  be  expressed  upon  it.  If  £ji  action  fr.r  g^n^^-  ^n],]  \\'\]]]]i'  '\]\^^vy 
case,  for  a  mere  tortious  taking,  the  goods  not  having  been  turned 
intoTnoneyT2_fcJ3:§-in!QBgd^^^j  ^'^  mnst  bpT)p?^iTrrap  the  law  will.  In  s'uch 
case,  imply  a  promise  to  pay_for  them ;  for  assumpsit  can  only  be 
maintained_upon  a  promi^£^express  or  implied.  Where  thfi-goods"have 
been  applied  to  the  use  of  the  wrongdoer,  it  may  not  be  unreasonable, 
an'd^  certainly  not  unjust,  to  iniplyajjromise  to  pay  for  them,  without 
regard  to  the  manner  in  which  the  goods  were  orTginallv  acgiili'prn  The 
wrongdoer  is  responsible^m  some  form  of  action  for  their  value,  and  he 
ean<not  be  prejudiced  by  holding  him  as  a  purchaser  and  not  a  tres- 
passer. In  such  case  if  the  wrongdoer  die  before  satisfaction  made 
or  a  recovery  had  for  the  trespass,  his  personal  representatives, 
although  not  ansvv'erable  in  tort  for  his  wrongful  acts,  are  still  liable 
to  the  party  injured  for  the  value  of  the  property.  To  this  extent  the 
property  of  the  wrongdoer  is,  in  such  case,  augmented  by  the  wrong 
done ;  and,  although  the  right  to  bring  an  action  of  trespass  dies  with 
the  person  of  the  trespasser,  his  representatives  are,  in  such  case,  held 
liable  in  assumpsit  for  the  value  of  the  propert}^,  on  the  principle  that 
the  estate  which  received  the  benefit  should,  so  far.  repair  the  injury. 
Hambly  v.  Trott  Cowp.  372;  Cravath  v.  Plympton,  13  Mass.  454; 
Wilbout  V.  Gilmore,  21  Pick.  252 ;  Powell  ik  Eeese,  7  A.  &  E.  426 ; 
Foster  v.  Stewart,  3  M.  &  S.  191.  And  it  is  upon  this  principle  alone, 
as  it  seems  to  me,  that  a  promise  to  pay  for  goods  tortiously  taken, 
can,  in  any  case,  be  implied.  It  is  clearly  so  where  the  action  is  brought 
against  the  personal  representatives  of  a  wrongdoer.  In  Powell  v. 
Peese,  just  cited.  Lord  Denman  said:  "In  the  case  of  Hambley  v, 
Trott.  1  Cowp.  372,  Lord  Mansfield  very  fully  considers  this  subject, 


96  OSBORN   V.   BELL.  [bOOK    I. 

and  lays  down  the  distinctions  which  arise  as  to  the  surviving  of 
remedies,  upon  the  cause  of  action,  and  the  form  of  action.  He 
observes,  that  there  is  'a  fundamental  distinction.'  If  it  be  a  sort  of 
injury  by  which  the  offender  acquires  no  gain  to  himself  at  the  expense 
of  the  sufferer,  as  beating  or  imprisoning  a  man,  &c.,  there  the  person 
injured  has  only  a  reparation  for  the  delictum  in  damages  to  be 
assessed  by  a  jury.  But  where,  besides  the  crime,  property  is  acquired 
which  benefits  the  testator,  there  an  action  for  the  value  of  the  property 
shall  survive  against  the  executor.  As  for  instance,  the  executor  shall 
not  be  chargeable  for  the  injury  done  by  his  testator  in  cutting  down 
another  man's  trees,  but  for  the  benefit  arising  to  the  testator  for  the 
value  or  sale  of  the  trees  he  shall." 

In  Cravath  v.  Plympton  (supra),  Putman,  J.,  in  delivering  the 
opinion  of  the  court,  said,  "The  principles  adopted  seem  to  be  that 
where  the  deceased,  by  a  tortious  act,  acquired  the  property  of  the 
plaintiff,  as  by  cutting  his  trees  and  converting  them  to  his  own  use, 
or  by  converting  his  goods  to  his  own  use;  although  no  action  of 
trover  or  trespass  will  lie ;  yet  the  law  will  give  the  plaintiff  some  form 
of  action,  to  recover  the  property  thus  tortiously  obtained.  But  where 
by  the  act  complained  of,  the  deceased  acquired  no  gain,  although 
the  plaintiff  may  have  suffered  great  loss ;  there  the  rule,  actio  per- 
sonalis moritur  cum  persona,  applies."  So,  too,  in  Wilbur  v.  Gilmore 
(supra),  Maston,  J.,  said,  "whenever  the  property  taken  by  the  testa- 
tor or  intestate  was  converted  to  his  own  use,  so  as  to  become  a  part  of 
his  assets,  an  action,  in  some  form,  would  lie  against  his  representa- 
tive to  recover  the  value  of  the  property." 

Now  in  the  case  before  us,  it  is  quite  deajjupim  jhe  evidence  in  the 
bill  of  exceptions,  that  no  action  for  this  supposed  injury  would  lie 
against  the  personal  representatives  of  the  defendant,  "''frespass  would 
not,  for  it  dies  with  the  person ;  and  assumpsit  would  not,  for  no  prop- 
erty"wa^'  acquired  by  the  defendant.  His  estate  has  not  been  benefited 
b}'  the  trespass,  if  it  was  one,  upoiTwhich  ground  alone,  are  the  personal 
representative^  ever  held  liable  for  the  wrongful  acts  of  a  testator  or 
intestate.  As  the  personal  representatives  of  the  defendant  would  not 
be  liable  in  this  case,  I  think  it  clear  that  he  cannot  be  charged  in 
assumpsit  for  these  goods  as  sold  to  him.  There  is  no  case,  I  will 
venture  to  say,  in  which  an  action  for  goods  soldjwill  lie  against  a 
party,  where  the  action  would  not  survive  against  his  personal  rep- 
r^sentativesi  miTR  action"can  be  maintaihecT  against  tlie  defendant, 
as  for  goods  sold,  it  will  follow  that  the  personal  representatives  of 
every  deceased  sheriff,  coroner  or  constable,  who  had  wrongfully  seized 
and  sold  property  on  execution,  must  be  held  liable  to  respond  to  the 
full  value  of  such  property,  although  the  proceeds  of  the  sale  had  boon 
paid  over  to  the  creditor  in  the  execution,  and  the  property  of  the 
deceased  officer  had  not  received  a  farthing's  benefit  from  the  tortious 
act.     This  would  confound  well-known  and  well-settled  distinctions 


CHAP.    III.]  OSBORN    V.    BELL.  97 

in  this  branch  of  the  hivv,  and  for  aught  I  see,  we  might  as  well 
hohl  that  trespass  lies  against  executors  or  administrators,  for  acts 
done  by  their  testators  or  intestates,  as  to  hold  that  this  action  for 
goods  sold  can  be  maintained  against  the  defendant.  If  a  promise 
to  pay  for  the  goods  was  made  in  fact,  or  is  implied  l)y  law,  then 
undoubtedly,  his  representatives  may  be  sued  on  such  promise.  No 
express  promise  was  pretended  in  this  case ;  and  as  the  personal  repre- 
sentatives of  the  defendant  could  not  be  held  liable  on  anything  shown 
in  this  bill  of  exceptions,  it  may,  I  think,  be  safely  held,  that  there 
is  no  ground  on  which  the  law  can  imply  a  promise  to  pay  for  the 
goods. 

An  action  forjnojieyLbnd  >md  received  is  said  to  resemble  a  bill  in 
equity,  and  to  lie  whenever  niojiey  has  been  received  by  one  person 
which  m  justice  and  equity  belongs  to_ another.  In  every  such  case 
an"  agreement  to  pay  over  the  money  thus  received  is  implied  by  the 
law.  2  Stark.  Ev.  82,  ed.  of  1842;  Jestons  v.  Brooke,  Cowp.  795; 
Foster  v.  Stewart,  supra;  Browne  on  Actions  at  Law,  515,  518.  ^But 
this  principle  is  not  applicable  in  its  full  extent,  to  an  i\oi\n-n  for  gnndt? 
soW,  as  tlTe~law^does  not  imply  an  agreement  to  pay  for  all  goods  of 
whicli  a  party  may  become  possessed.  "It  is  a  principle  well  settled," 
says  Chief  Justice  Mellen,  5  Greenl.  322,  "that  a  promise  is  not 
implied  against  or  without  the  consent  of  the  person  attempted  to  be 
charged  by  it.  Whiting  v.  Sullivan.  7  Mass.  107.  And  where  one 
is  implied  it  is  because  the  party  intended  it  should  be,  or  because 
natural  justice  requires  it,  in  consequence  of  some  benefit  received." 
It  was  not  shown  on  the  trial  of  this  case  that  the  defendant  had 
received  "any  benefit  from  j]ii8_seizure_and_^alc  of  the  property  in 
questioii^  Ko  express  promise  to  pay  for  the  goods  was  pretended, 
aiKTeVCTy  feature  of  the  transaction  repels  the  idea  that  the  defend- 
ant intended  to  have  one  implied  from  what  he  did.  He  may  have 
been  a  trespasser,  but  I  see  no  ground  on  which  he  can  bo  held  liable 
for  these  goods  as  sold  to  him.  If  he  can  be,  such  an  action  is,  in 
a  1  T>TOsf_pvpry  imnffinnblp  pasp^  a  nnnpurrent  reiuedv  with  trover,  re-- 
plevin  and  trespass  for  personal  properly.  It_inavJ)e  a  concurrent 
remedy  where  jthe  ^pxaperty  has  been --appxQpa!iai£4__byI]a_wrongdoer 
to  his  own  use,  but  unless  that  fact  is  shown,  I  think  no  case  will  be 
found  m  which  it  has  been  beTdJTintj_  prnriisp  tn  pny  for  tJ212_£'^"ds 
ismiijlied  by  law.  That  was  not^hown  on  the  trial  of  this  cause,  and 
therefore,  as  it  seems  to  me,  the  judge  erred  in  holding  that  the  action 
for  goods  sold  was  well  brought.^ 

'Accord:  People  v.  Gibbs  (1832)  9  Wend.  29;  Elliot  v.  Cronk's  Adm's 
(1834)    13  Wend.  35. 

In  Gloucestershire  Banking;  Co.  v.  Edwards  (1887)  L.  R.  19  Q.  B.  D.  575, 
the  action  was  held  to  lie  ajrainst  an  under-sheriff  and  his  executors  to  re- 
cover sums  wronfTfully  retained,  and  in  U.  S.  r.  Daniel  (1848)  G  How.  11,  the 
Supreme  Court  held  that  the  action  against  marshal  or  deputy-marshal  would 


98  HURLEY   V.   LAMOREAUX.  [BOOK   I. 

HUKLEY  V.  LAMOKEAUX. 

Supreme  Court  of  Minnesota. 

[29  Minnesota,  138.] 

Appeal  by  defendants  from  an  order  of  the  district  court  for  Hen- 
nepin County,  Young,  J.,  presiding,  overruling  their  demurrer  to  the 
complaint.  The  entire  complaint  is  recited  in  the  opinion,  excepting 
the  description  of  the  real  estate. 

Berry,  J.  The  complaint  is  that  on  May  1,  1881,  the  plaintiff 
"was,  and  ever  since  has  been  and  now  is,  the  owner  in  fee-simple" 
of  certain  described  premises ;  that  defendants  have  used  and  occupied 
the  same  from  said  first  day  of  May;  and  "that  said  use  and  occupa- 
tion of  said  premises  for  said  time  was  and  is  reasonably  worth  the 
sum  of  $800."     For  this  sum  judgment  is  demanded. 

This  action  is  in  the  nature  of  assumpsit  for  use  and  occupation. 
It  lies  only  where  the  relation  of  landlord  and  tenant  subsists  be- 
tween the  parties,  founded  on  agreement  express  or  implied.  Taylor 
on  Landlord  &  Tenant,  §  636 ;  Abbott,  Trial  Ev.  351 ;  Carpenter  v. 
United  States,  17  Wall.  489;  City  of  Boston  v.  Binney,  11  Pick.  1; 
Mayo  V.  Fletcher,  14  Pick.  525;  Ackerman  v.  Lyman,  20  Wis.  454; 
Holmes  v.  Williams,  16  Minn.  164.  As  the  complaint  contains  no 
allegations  of  any  facts  showing  that  the  relation  of  landlord  and  ten- 
ant subsisted  between  the  plaintiff  and  defendant  at  the  time  of  the 
alleged  use  and  occupation,  or  any  part  thereof,  it  fails  to  state  a 
cause  of  action,  and  defendants'  demurrer  was  therefore  well  taken. 
The  plaintiff  appears  to  claim  that  he  has  framed  his  complaint  upon 
the  theory  of  waiving  a  tortious  entry  and  occupation  of  the  premises 
by  defendant,  and  suing  upon  an  implied  contract  to  pay  for  use  and 
occupation.  One  obstacle  in  the  way  of  this  claim  is  that  no  tortious 
entry  or  occupation  is  in  any  way  alleged.  But  the  insuperable  an- 
swer to  it  is  found  in  the  authorities  above  cited,  which  hold,  in  effect, 
that  a_trespasser  cannot  be  converted  into  a  tenant  without  his  con- 
sent In  other"\Voids,4«-4ftaiH4ain-tiu  aeliun  for  us-e 'JiicTbccupation, 
there  must  have  been  an  agreement,  expfesH"  or  imprlied,  h^  wtlicli 
fIie~~relation  of  landlord  and  tenant  is  created  between  the  parties. 
Privity  of  coTTlracL  belueen  them  is  indispensable.  ' 

Order  reversed.^ 

lie  against  his  executors  if  assets  from  the  deceased  had  come  to  their  hands. 
And  see  the  admirahle  opinion  of  Mr.  Justice  Brem'er  in  Patton  v.  Brady, 
Executrix  (1901)  184  U.  S.  608,  612-615.  And  so  are  the  authorities  gen- 
erally.— Ed. 

'The  opinion  of  the  court  in  Burdin  v.  Ordway  (1896)  88  Me.  375  is  as 
follows : 

"Assumpsit  for  rent.  No  express  promise  is  shown,  and  the  law  does  not 


CHAP.   III.]  HEAD  V.  PORTER.  99 

HEAD  V.  PORTER. 

Circuit  Court  of  the  United  States,  1895. 

[70  Federal  Reporter,  498.] 

Colt,  Circuit  Judge.  This  is  a  motion  to  dismiss  a  bill  in  equity 
upon  the  ground  that  by  reason  of  the  death  of  the  defendant  the  suit 
has  abated,  and  cannot  be  revived.     The  bill  i^  jrnyntrht  for  the  in- 


fringemont  of  a  patent,  and  contains  the  usual  prayer  for  an  mjunc- 
tion  andan  account  of  pTohts.  The  usual  mode  of  procedure  where 
the  defendanrcTTes^pending  suit  is  for  the  complainant  to  bring  a  bill 
of  revivor,  and  for  the  defendant  to  raise  the  question  of  the  survival 
of  the  action  by  demurrer  to  the  bill;  but,  since  the  question  has 
been  fully  argued  on  the  present  motion,  I  will  proceed  to  consider  it. 
The  present  bill  prays  for  an  injunction  as  well  as  an  account  of 
profits,  and  is,  therefore,  a  case  within  the  jurisdiction  of  a  court  of 
equity.  It  not  only  asks  for  an  injunction  against  future  infringe- 
ments, but  it  calls  upon  the  wrongdoer  to  refund  the  profits  he  has 
made,  "as  it  would  be  inequitable  that  he  should  make  a  profit  out 
of  his  own  wrong."  Profits  arp  the  gains  or  savings  made  by  the 
Avrongdoer  by  the  invasion  of  the  complainant's  property  right  in  his 

imply  one  from  the  facts  in  the  case.  The  defendant  was  tenant  of  the  plaintiff's 
father.  He  died,  and  the  tenant  denies  the  title  of  the  plaintiff,  who  claims 
to  hold  as  heir.  As  to  him,  the  tenant  has  become  a  disseizor.  There  was  no  re- 
lation of  landlord  and  tenant  between  them  from  which  the  law  implies 
assumpsit  for  rent  or  use  and  occupation.  Eogers  v.  Libbey,  35  Me.  200; 
Howe  V.  Russell,  41  Me.  446;  Emery  v.  Emery,  87  Me.  281.  Title  to  land 
should  not  be  tried  in  assumpsit." 

See  also  Lloyd  v.  Hough  (1843)  1  How.  153;  Hill  v.  U.  S.  (1892)  149  U.  S. 
593;  Adsit  v.  Kaufman  (1903)  121  Fed.  355;  Lathrop  v.  Standard  Oil  (1889) 
83  Ga.  307;  Henderson  v.  Detroit  (1886)  61  Mich.  378;  Dixon  v.  Ahem  (1887) 
19  Nev.  422;  Preston  v.  Hawley  (1886)  101  N.  Y.  586;  Downs  v.  Finnegan 
(894)   58  Minn.  112. 

For  the  history  and  statutory  origin  of  the  action  for  use  and  occupation, 
see  the  article  on  the  subject  by  Mr.  Ames  in  2  Harv.  Law  Rev.  377. 

The  case  of  Phillips  v.  Homfray  (1883)  L.  R.  24  Ch.  D.  439  (followed 
with  evident  regret  in  Leslie  v.  Calvin  (1885)  9  Ont.  207,  but  approved 
in  in  re  Duncan,  L.  R.  [1899]  1  Ch.  387)  contains  an  elaborate  discus- 
sion of  the  English  law  on  this  subject,  and  an  analysis  of  the  cases. 
Lack  of  space  prevents  its  insertion.  The  dissenting  opinion  of  Bag- 
GALLY,  L.  J.,  is  especially  valuable  on  the  subject  of  "negative  enrich- 
ment." See  also  the  carefully  considered  judgment  in  Batthyany  v.  Walford 
(1SS7)  L.  R.  36  Ch.  D.  269.  On  principle,  assumpsit  should  lie  in  these  cases 
and  should  therefore  survive  against  the  executors  of  the  tortfeasor.  To  the 
lay  mind  a  penny  saved  is  indeed  a  penny  earned ;  but  it  will  probably  be  some 
time  before  the  court  catches  up  with  the  people.  The  case  of  Sellers  v. 
Lawrence  (1743)  Willes,  413,  post,  is  a  precedent  in  point. — Ed. 


100  HEAD  V.  PORTER.  [BOOK   I. 

patent.  They  are  the  direct  pecuniary  benefits  received,  and  are 
capable  of  a  definite  measurement.  Calling  them  the  "measure  of 
damages  in  equity"  does  not  mean  that  they  are  the  same  as  damages 
in  an  action  at  law.  They  are  clearly  not  the  same.  "Profits  in 
equity  are  the  gain,  or  saving,  or  both,  which  the  defendant  has 
made  by  employing  the  infringing  invention.  This  gain  or  saving 
is  a  fact.  It  is  an  actual  pecuniary  benefit  which  has  resulted  directly 
from  the  defendant's  wrongful  use  of  the  plaintiff's  property, 
which  he  has  had  and  enjoyed,  and  to  which,  on  equitable  theories, 
the  plaintiff  is  entitled."  3  Eob.  Pat.  §  1062,  note  7,  par.  3.  At  law 
damages  may  include _profitSv,^ut  they  also  include  other  elements 
necessary  to  make  jip_^e  a^ctual  loss,  aiid  to  give~lull  compensation 


to'THe  injuredjarty.  They  may  be  still  further  increased  Sy^way 
of'pums^hment  for  the  wrong.  But  e^quityj_unless  by  statute,  exacts 
nothing  by  way  of  loss  or  punishment  from  the  wrongdoer  except  his 
acHirgatns:~TirErizabeth  v.  Pavement  Co.,  97  U.  S.  126,  Mr.  Justice 
Bradley,  speaking  for  the  court  (page  138),  said: 

"But  one  thing  may  be  affirmed  with  reasonable  confidence, — that, 
if  an  infringer  of  a  patent  has  realized  no  profit  from  the  use  of  the 
invention,  he  cannot  be  called  upon  to  respond  for  profits.  The 
patentee,  in  such  case,  is  left  to  his  remedy  for  damages.  It  is  also 
clear  that  a  patentee  is  entitled  to  recover  the  profits  that  have  been 
actually  realized  from  the  use  of  his  invention.  ...  It  may  be  added 
that,  where  no  profits  are  shown  to  have  accrued,  a  court  of  equity 
cannot  give  a  decree  for  profits,  by  way  of  damages,  or  as  a  punish- 
ment for  the  infringement.  Livingston  v.  Woodworth,  15  How.  559. 
But  when  the  entire  profit  of  a  business  or  undertaking  results  from 
the  use  of  the  invention,  the  patentee  will  be  entitled  to  recover  the 
entire  profits,  if  he  elects  that  remedy." 

Referring  to  that  case  in  Eoot  v.  Railway  Co.,  the  court  (page  203) 
said: 

"Accordingly,  in  that  case,  the  bill  was  dismissed  as  to  the  city  of 
Elizabeth,  which  had  infringed,  because  it  appeared  that  it  had  made 
no  profit  from  the  use  of  the  patented  improvement,  while  a  decree 
was  rendered  against  the  contractor  who  had  laid  the  pavement  which 
was  the  subject  of  the  patent,  because  he  -was  shown  to  have  made 
profits  from  the  infringement.  The  municipal  corporation,  of  course, 
remained  liable  to  respond  in  damages  in  an  action  at  law  for  any  loss 
which  the  plaintiff  could  have  established  by  proof." 

By  the  act  of  July  8,  1870,  c.  230,  16  Stat.  206,  the  complainant 
in  a  bill  in  equity  brought  for  the  infringement  of  a  patent  is  entitled 
to  recover,  in  addition  to  the  profits,  the  damages  he  has  sustained. 
In  referring  to  this  statute  in  Birdsall  v.  Coolidge,  93  U.  S.  64,  the 
court  (page  69)  said: 

"Gains  and  profits  are  still  the  proper  measure  of  damages  in  equity 
suits,  except  in  cases  where  the  injury  sustained  by  the  infringement 


CHAP.    III.]  HEAD  V.  PORTER.  101 

is  plainly  greater  than  the  aggregate  of  what  was  made  by  the  respond- 
ent ;  in  which  event  the  provision  is  that  the  complainant  'shall  be 
entitled  to  recover,  in  addition  to  the  profits  to  be  accounted  for  by 
the  respondent,  the  damages  he  has  sustained  thereby.' " 

In  referring  to  that  case  in  Root  v.  Railway  Co.,  it  is  (page  201) 
declared : 

"The  whole  force  of  the  change  in  the  statute  consists  in  conferring 
upon  courts  of  equity,  in  the  exercise  of  their  jurisdiction  in  admin- 
istering the  relief  which  they  are  accustomed  and  authorized  to  give, 
and  which  is  appropriate  to  their  forms  of  procedure,  the  power  not 
merely  to  give  that  measure  of  compensation  for  the  past,  which  con- 
sists in  the  profits  of  the  infringer,  but  to  supplement  it,  when  neces- 
sary, with  the  full  amount  of  damage  suffered  by  the  complainant, 
and  which,  if  he  had  sued  for  that  alone,  he  would  have  recovered  in 
another  form." 

The  general  rule  that  personal  actions  die  with  the  person  does 
not  apply  where  property  is  acquired  which  benefits  the  testator.  In 
the  language  of  the  supreme  court  in  U.  S.  v.  Daniel,  6  How.  11,  13: 

"Where,  by  means  of  the  offence,  property  is  acquired  which  benefits 
the  testator,  there  an  action  for  the  value  of  the  property  shall  survive 
against  the  executor." 

In  the  case  of  Bishop  of  Winchester  v.  Knight,  1  P.  Wms.  406, 
where  the  bill  prayed  for  an  account  of  ore  dug  by  the  ancestor  of 
the  defendant,  and  the  argument  was  that,  this  being  a  personal  tort, 
it  died  with  the  person.  Lord  Chancellor  Hardwicke  (page  407)  said: 

"It  would  be  a  reproach  to  equity  to  say,  where  a  man  has  taken  my 
property,  as  my  ore  or  timber,  and  disposed  of  it  in  his  lifetime,  and 
dies,  that  in  this  case  I  must  be  without  remedy.  It  is  true,  as  to  the 
trespass  of  breaking  up  meadow,  or  ancient  pasture  ground,  it  dies 
with  the  person ;  but  as  to  the  property  of  the  ore  or  timber  it  would 
be  clear,  even  at  law,  if  it  came  to  the  executor's  hands,  that  trover 
would  lie  for  it ;  and,  if  it  has  been  disposed  of  in  the  testator's  life- 
time, the  executor,  if  assets  are  left,  ought  to  answer  for  it." 

In  Lansdowne  v.  Lansdowne,  1  Madd.  116,  which  was  a  bill  for  an 
account  of  profits  for  equitable  waste,  the  vice-chancellor  (page  139) 
said : 

"This  I  take  to  be  a  just  exposition  of  the  qualifications  under  which 
the  maxim,  'Actio  personalis  moritur  aim  persona/  is  received  at  law ; 
and,  if  equity  is  to  decide  in  analogy  to  a  court  of  law,  the  question 
in  the  present  case  will  be  whether,  by  the  equitable  waste  committed 
by  the  late  marquis,  he  derived  any  benefit ;  or  wlicther  it  was  a  naked 
injury,  by  which  his  estate  was  not  benefited.  .  .  .  And  as  at  law, 
if  legal  waste  has  been  committed,  and  the  party  dies,  an  action  for 
money  had  and  received  lies  against  his  representative,  so,  upon 
the  same  principle,  in  cases  of  equitable  waste,  the  party  must,  through 
his  representatives,  refund  in  respect  to  the  wrong  he  has  done." 


102  HEAD   i".   POKTEK.  [BOOK   I. 

In  the  case  of  Phillips  v.  Homfray,  24  Ch.  Div.  439,  Justice  Bag- 
GALLAY  (page  476)  said: 

"The  general  result  of  these  cases,  and  of  others  to  the  like  effect, 
may  thus  be  stated :  that  a  court  of  equity  will  give  effect  to  a  demand 
against  the  estate  of  a  deceased  person  in  resppct  of  a  wrnno-fnl  apt  f]opp 
byUuffl-  if  the  wrongful  act  has  resulted  in  a  benefit  capable  of  being 
measuredpecuniarily,  and  if  the  demand  is  of  such  a  nature  as  can 
be  properiyentertained  by  the  court.  The  principles  thus  acted  upon 
by  ^courts  of  equity  are  in  accordance  with  the  conclusi^Tia  p-pnnpiatn ^ 
byJliOrd  Mansfield  with  reference  to  actions  at  common  Ino:  which 
survive  or  die  on  account  of  the  cause  of  action ;  buty-aa-CEgardiUlose 
actions  which  at  common  law  survive  or  die  on  account  of  the 
formjjf  action,  courts  of  equity  will  not  permit  the  justice  of  the 
casfi— lo_be__defeated  by  reason  of  the  technicalities  of  particular 
procedure." 

In  Sayles  v.  Railroad  Co.,  4  Ban.  &  A.  239,  Fed.  Cas.  Xo.  12,424, 
which  was  a  suit  for  the  infringement  of  a  patent,  Judge  Hughes 
(page  245,  4  Ban.  &  A.,  Fed.  Cas.  No.  12,424)  said: 

"Let  us  now  suppose  the  case  of  a  person  who  takes  possession  of 
and  uses  another's  horse,  wagon,  and  team,  or  threshing  machine, 
without  his  knowledge,  consent,  or  authority.  In  such  a  case  .  .  . 
the  owner  may  recover  damages  in  trespass  for  the  tort,  or  he  may 
waive  the  tort,  and  sue  in  assumpsit  on  the  implied  promise  to  pay 
what  is  equitably  due  for  the  use  and  possession  of  the  property.  .  .  . 
The  case  I  have  supposed  is,  in  principle,  precisely  the  case  we  have 
at  bar ;  for  there  is  no  magical  quality  in  the  property  of  the  patentee 
in  his  patent  to  distinguish  this  case  from  the  one  just  supposed.  .  .  . 
The  act  of  the  defendant  was  nothing  but  the  simple  one  of  a  person 
taking  and  using  another's  property  Avithout  authority,  to  his  own 
advantage,  and  incurring  a  liability  to  compensate  the  owner  for  such 
use  of  the  property.  The  case  is,  in  principle,  precisely  identical  with 
that  of  such  use  of  a  horse,  or  a  boat,  or  a  wagon  and  team,  or  threshing 
machine,  giving  a  right  of  action  in  assumpsit." 

In  Stone-Cutter  Co.  v.  Sheldons,  15  Fed.  608,  which  was  a  patent 
suit.  Judge  Wheeler  (page  609)  observed: 

"When  the  Windsor  Manufacturing  Company  sold  machines  em- 
bodying these  inventions  to  the  defendants  for  use,  it  invaded  the 
orator's  rights,  and  converted  the  orator's  property  to  its  own  use. 
These  acts  were  tortious,  and  an  action  would  lie  for  these  wrongs. 
As  that  company  received  money  for  the  orator's  property,  the  orator 
could  waive  the  tort,  and  sue  in  assumpsit  for  the  money,  or,  what 
is  the  same  in  effect,  proceed  for  an  account  of  the  money  received." 

In  Jones  v.  Van  Zandt,  4  :McLean,  599,  Fed.  Cas.  No.  7,503,  the 
court  (page  600,  4  McLean,  Fed.  Cas.  No.  7,503)  said: 

"But,  except  l)y  statute,  actions  of  torts,  replevin,  etc.,  do  not  survive 
against  the  e.xecutors  or  administrators,  unless  the  estate  of  the  de- 


CHAP.    III. J  HEAD  V.   PORTER.  103 

oeascil  received  some  gain  from  the  wrong,  when  some  form  of  action 
will  lie." 

May  r.  Logan  Co.,  30  Fed.  250,  was  an  action  at  law  against  the 
county  of  Logan  for  the  infringement  of  a  patent,  which  came  before 
Judges  Jacksox  and  Welker.  Judge  Jackson,  in  the  opinion  of  the 
court  (page  259),  said: 

"It  would  be  a  strange  anomaly  in  the  law  if  a  county,  which  had 
thus  wrongfully  appropriated  a  patentee's  invention  and  property, 
could  escape  liability  for  damages  thence  resulting  to  the  owner  by  the 
simple  device  of  calling  the  illegal  act  a  tort,  or  by  saying  that  the 
remedy  by  an  action  on  the  case,  which  congress  had  provided,  was 
appropriate  or  applicable  only  to  torts.  .  .  .  The  patentee's  rights 
and  remedies  are  created  and  defined  by  congress,  which  has,  under 
the  constitution,  the  exclusive  control  of  the  subject.  The  right  is 
given  and  remedy  created  by  federal  statute,  which  does  not  except 
counties  from  the  obligation  to  respect  the  exclusive  grant  to  the 
patentee  of  making,  selling,  and  using  his  invention.  Judicial  refine- 
ments and  distinctions  upon  the  character  of  the  remedy  prescribed 
by  congress  for  violations  of  the  patentee's  rights,  conferred  by  statute 
of  the  general  government,  should  not  be  resorted  to  either  to  defeat 
the  right  or  impair  the  remedy.  If  congress  had  not  directed  that  an 
action  on  the  case  should  be  the  renietTy  for  the  recover}'  of  damages 
for  the  mirmgement  of  a  patent,  the  patentee  could,  in  cases  like  tlie 
]3resent,  waive  what  is  called  the  tortious  act,  and  bring  asTnmjjsil 
upon  the  implied  contract  against  the  county  to  recover  the  value  of 
his  propertv  appropriated.  It  is  refining  too  much  to  allow  the  nature 
of  the  action  to  defeat  the  actual  and  substantial  rights." 

^^n~tn\eiiliun  iii\olves  the  conception  of  means,  wnicn,  when  em- 
bodied in  a  concrete  form,  may  become  the  subject  of  a  patent.  ''It  is 
a  mental  result,  .  .  .  and  the  machine,  process,  or  product  is  but 
its  material  reflex  and  embodiment."  Smith  v.  Xichols,  21  Wall. 
112,  118.  A  patent  is  an  incorporeal  property  right  in  an  invention, 
created  by  statute.  Property  rights,  whether  corporeal  or  incor- 
poreal, are  governed  by  the  same  principles,  and  should  receive  equal 
protection.  When  a  person  wrongfully  <'\ppropriates  a  patented  in- 
vention, it  is  an  invasion  of  the  patentee's  right  of  property,  and  the 
gains  or  profits  derived  from  such  piracy  belong  to  the  patentee.  Be- 
cause the  machine  in  which  the  wrongdoer  may  have  embodied  his 
piracy  may  not  belong  to  the  patentee  does  not  affect  the  real  char- 
acter of  the  act.  I  can  see  no  difference  in  principle  between  a  suit  by 
the  owner  of  a  patent  against  an  infringer  to  recover  the  profits  he  has 
made  and  a  suit  by  the  owner  of  land  or  of  a  mine  against  a  wrong- 
doer to  recover  the  value  of  timber  or  ore  taken.  I  cannot  assent  to 
the  proposition  that  the  profits  actually  made  by  an  infringer,  for 
which  recovery  is  sought  by  a  bill  in  equity,  are  the  same  as  damages 
in  an  action  of  libel,  slander,  diversion  of  a  water  course,  trespass  in 


104  SOLLERS    V.    LAWRENCE,  [BOOK    I. 

breaking  up  meadow  or  pasture  land,  and  similar  actions  of  tort. 
The.  former  arc  the  actual,  direct,  pecuniary  benefits,  capable  of  defi- 
nite measurement,  acquired  by  the  wrongdoer;  the  latter  are  pri- 
marily the  loss  suffered  by  the  injured  party  where  the  wrongdoer 
realizes  no  pecuniary  benefits,  or  only  such  as  are  indirect,  indefinite, 
or  rest  in  speculation,  compromise,  or  arbitrary  adjustment.  For 
these  reasons  I  am  of  opinion  that  this  cause  of  action  survives,  and 
that  the  motion  to  dismiss  should  be  denied. 
Motion  denied.^ 


SOLLERS  V.  LAWRENCE. 

Court  of  Common  Pleas,  1743. 

[Willes,  413.2] 

The  opinion  of  the  Court  was  delivered,  as  follows,  by  Willes,  Lord 
Chief  Justice.  Debt.  The  plaintiff  declares  upon  the  judgment  of 
fixfi^f  the  commissioners^who  are  made  a  court  of  record,  and  are 
appointed  to  hear  and  determine~all  differences  and  disputes  touching 
and  concerning  the  rebuilding  of  houses  and  other  buildings  in  the 
town  of  Blandford  burned  down  or  demolished  by  the  late  dreadful 
fire  by  an  act  made  5  Geo.  2.  c.  16. 

As  to  the  merits;  the  only  objections  are, 

1st,  That  this  house  being  burned  in  the  general  conflagration, 
and  it  not  being  pretended  that  Riley  was  in  any  default,  there- 
fore he  was  not  obliged  to  contribute  anything  to  rebuild  the  house, 
and  consequently  his  representatives  could  not  bo  obliged ;  for  as  they 
stand  only  in  his  place  they  cannot  be  liable  farther  than  he  was. 

2dly,  It  was  said  that  if  he  were  obliged,  no  suit  could  be  brought 
against  his  executors  or  administrators,  for  that  actio  'personalis  (as 
this  is)  moritur  cum  'persona. 

3dly,  It  was  objected  that  there  was  no  foundation  for  the  rule 
and  measure  of  damages,  which  the  commissioners  plainly  went  by, 
to  give  the  fifth  part  of  the  profits  during  the  life  of  Riley. 

These  being  questions  properly  belonging  to  the  Ecclesiastical 
Courts,  and  the  books  which  were  cited  being  very  dark  in  relation 
to  these  matters,  it  was  thought  proper  to  hear  civilians,  and  from 
the  best  lights  that  we  could  get  from  them  the  objections  seem  to  be 
of  no  weight.  To  be  sure  if  Riley  were  not  liable,  his  executors  or 
administrators  were  not. 

'Accord:  Kirk  v.  DuBois  (188G)  28  Fed.  460;  Hohorst  v.  Howard  (1888) 
37  Fed.  97;  Griswold  v.  Hilton  (1898)   87  Fed.  2.56. 

Contra:  Child  v.  Boston  &  Fairhaven  Iron  Works  (1884)  137  Mass.  516; 
Leslie  v.  Calvin  (1885)  9  Ont.  207. 

'Only  part  of  the  opinion  is  given. — Ed. 


CHAP.    III.]  SOLLERS    V.    LAWRENCE.  105 

It  is  proper  therefore  to  consider  in  the  first  place  whether  he  was 
liable.  It  is  certain  that  if  a  parsonage  or  vicarage-house  be  burned 
down,  there  must  be  some  way  of  rebuilding  it  for  necessity's  sake  and 
the  good  of  the  public ;  for  there  must  be  parsons  and  vicars,  and  they 
must  have  houses  to  live  in;  it  follows  therefore  that  when  they  are 
burned  down  they  must  be  built  up  again.  If  the  suit  be  brought 
ex  officio  in  the  lifetime  of  the  incumbent,  (and  it  must  be  so  because 
no  one  is  interested  to  bring  it,)  Dr.  Paul  informed  us  that  the 
constant  rule  is  to  order  a  fifth  part  of  the  profits  of  the  living  to  be 
set  apart  in  order  to  rebuild  the  house.  This  must  plainly  be  for 
necessity's  sake  and  when  the  incumbent  is  in  no  default :  for  if  he 
be  in  fault,  he  ought  (as  in  the  general  case  of  dilapidations)  to  pay 
the  whole.  Several  cases  were  cited  by  Dr.  Paul  to  this  purpose;  the 
case  of  the  Deanry-house  and  the  Chancellor's  house  at  Chichester, 
and  the  case  of  the  vicarage-house  of  Worminghall  in  Berlshire; 
which  though  not  cases  directly  in  point  yet  plainly  shewed  that  the 
Ecclesiastical  Courts  usually  went  by  this  rule,  and  they  founded  their 
determinations  on  the  injunctions  of  Ed.  VI.  and  Queen  Elizabeth, 
and  an  injunction  of  Archbishop  Cranmer,  enforcing  the  same  and 
ordering  them  to  be  observed ;  which  though  perhaps  not  strictly  law 
were  very  proper  measures  for  the  Ecclesiastical  Courts  to  govern 
themselves  by,  when  they  otherwise  must  judge  arbitrarily  and  without 
any  rule  at  all.  As  therefore  the  commissioners  were  under  a  neces- 
sity of  giving  some  damages,  as  this  is  a  very  equitable  rule,  as  it 
is  observed  in  the  ecclesiastical  courts  and  founded  on  the  authorities 
before  mentioned,  and  as  the  common  law  is  quite  silent  in  relation 
to  this  matter,  I  do  not  see  what  better  rule  the  commissioners  could 
govern  themselves  by.  Therefore  the  first  and  third  objections  seem  to 
be  of  no  weight. 

As  to  the  second,  that  the  action  will  not  lie  against  the  executors 
though  there  might  be  a  remedy  against  Riley,  it  is  contrary  to  all  the 
rules  laid  down  concerning  dilapidations  and  the  constant  practice 
in  relation  to  suits  of  this  sort ;  for  both  in  the  ecclesiastical  and 
temporal  covirts,  since  tliese  suits  have  been  retained  here,  multitudes 
of  suits,  nay  most  of  them,  have  been  against  the  executors  or  admin- 
istrators, and  have  been  always  holden  to  be  good,  because  it_is  not 
considered  as  a  tort  in  the  testator,  but  as  a  duty  which  he  ought  to 
have  performed,  and  'tlierefore  his  representatives,  so  far  as  bereft 
assets7"sKari  be  equally  liable  as  himself^  And  for  this  reason,  it  is 
not  contrary  to  the~rule  thatlictio  personalis  (which  is  always  under- 
stood  of  a  tort)~wo?T7//r  ciTnTJiersona;  as  actions  on  the  case  for  all 
sorts  of  debts  and  duties  are  now  daily  l)rought  against  executors, 
though  this  was  formerly  doubted.  But  the  law  has  been  now  so  settled 
at  least  150  years. 

We  think  tlierefore  that  the  commissioners  had  a  jurisdiction;  and 
as  nothing  appears  upon  the  record  to  shew  that  they  have  determined 


106  .  FERRILL    V.    MOONEY.  [BOOK    I. 

wrong,  we  must  intend  that  it  appeared  before  them  that  the  testator 
left  assets,  otherwise  that  they  wonld  not  have  made  a  personal  decree 
against  the  defendants;  and  therefore  we  are  of  opinion  that  judg- 
ment must  be  for  the  plaintiff. 

-N.  I  and  my  Brother  Burnett  only  were  present  in  court  at 

the  time  of  giving  this  opinion ;  my  Brothers  Fortescue  A.  and  Abney 
not  having  heard  the  arguments :  but  Lord  Chief  Baron  Parker, 
who  heard  the  arguments  and  consulted  with  us,  gave  me  authority  to 
say  that  he  was  of  the  same  opinion.^ 


FERRILL'S  ADMINISTRATRIX  v.  MOONEY'S  EXECUTORS. 

Supreme  Court  of  Texas,  1870. 

[33  Texas,  219.] 

Morrill,  C.  J.  The  points  for  adjudication,  and  which  are  raised 
by  the  pleadings  in  this  case  are : 

First — Whether  a  claim  for  killing  and  butchering  and  using^ 
certain  animals,  against  a  party  thus  trespassing,  abates  by  the  death 
of  the  trespasser  or  claimant,  or  of  both. 

Second — Whether  the  statutes  of  limitation  apply  when  there  is  no 
administration  on  the  estate  of  the  party  claiming  the  damages. 

Third — AYhether  it  is  necessary  to  present  the  claim  for  the  damages 
to  the  administrators  of  the  estate  of  the  one  taking  the  animals. 

As  the  injuries  complained  of  did  not  affect  the  person  injured, 
either  physically,  morally  or  mentally,  but  only  in  his  property, 
and  as  the  pleadings  do  not  raise  or  seek  vindictive  or  exemplary 
damages  for  a  tort,  but  simply  seek  to  recover  the  value  of  property, 
lliisjs^not  a  personal  action.  !^  is  simplyjin  action  to  recover  property 
0£  its  value.  _  The  wrongfuT method  of  obtaining  the  property  cannot 
be  considered,  but  simply  the  value  of  the  property,  in  the  same  manner 
as  if  it  had  been  obtained  by  consent  of  the  owner. 

In  the  case  of  Taney  v.  Edwards,  27  Texas,  225,  the  court  say : 
"That  in  all  cases  of  injuries  to  the  person,  whether  by  assault, 
battery,  false  imprisonment,  shmder  or  otherwise,  if  either  the  party 
who  received  or  committed  the  injury  flie,  no  action  can  be  supported 
either  by  or  against  the  executors  or  other  personal  representatives," 
by  the  common  law  of  England. 

'Accord:  Bryan  v.  Clay.  Executor  ( 18,52)  1  B.  &  E.  38.  See  also,  Battliyany 
V.  W-jvWord  (1887)  L.  R.  3G  Ch.  D.  2G9,  280,  where  the  principal  case  is  cited 
Avitli  approval. — Ed. 

-i'lie  italics  are  the  editor's,  and  only  a  part  of  the  opinion  relating  to  first 
question  is  printed. — Ed. 


BOOK    11. 
THE  OBLIGATION  OF  QUASI-CONTRACT. 


CHAPTER   I. 

Where  there  is  no  Contract,  Actually  or  in  Contemplation 

OF  THE  Parties. 


SECTION  I. 

Where  the  Plaintiff  has  Suffered  a  Tort. 
1.  waiver  of  tort  action. 


LAMINE  V.  DORRELL. 

Court  of  King's  Bench,  1705. 

[3  Lord  Raymond,  1216.] 

In  an  indehitatus  assumpsit  for  money  received  by  the  defendant  to 
the  use  of  the  plaintiff  as  administrator  of  J.  8.  on  non  assumpsit 
pleaded,  upon  evidence  the  case  appeared  to  be.  that  J.  8.  died  intes- 
tate possessed  of  certain  Irish  debentures ;  and  the  defendant  pretend- 
ing to  a  right  to  be  administrator,  got  administration  granted  to 
him,  and  b}^  that  means  got  these  debentures  into  his  hands,  and 
disposed  of  them:  then  the  defendant's  administration  was  repealed, 
and  administration  granted  to  the  plaintiff,  and  he  brought  this  action 
against  the  defendant  for  the  money  he  sold  the  debentures  for.  And 
it  being  objected  upon  the  evidence,  that  this  action  would  not  lie, 
because  the  defendant  sold  the  debentures  as  one  that  claimed  a  title 
and  interest  in  them,  and  therefore  could  not  he  said  to  receive  the 
money  for  the  use  of  the  plaintiff,  which  indeed  he  received  to  his 
own  use;  but  the  plaintiff  ought  to  have  brought  trover  or  detinue 
for  the  debentures :  the  point  was  saved  to  the  defendant,  and  now  the 
court  was  moved,  and  the  same  objection  made. 

PoAVELL,  Justice.  Itis  clear  the  plaintiff  might  have  maintained 
detinue  or  trover  for  the  debentures ;  but  when  the  act  that  is  done 
is  In  its  nature  tortious,  it  is  hard  to  tnrn  that  into  a  contract,  and 
against  the  reason  of  assumpsits.  But  the  plaintiff'  may  dispense  wjth 
the_wrong,  and  suppose  the  sale  made  by  his  consent,  and  bring  an 


108  LAMINE    V.    DORKELL.  [BOOK   II. 

action  for  the  money  they  were  sold  for,  as  money  received  tohis 
use.  _  It  has  been  carried  thus  far  already.  Howard  and  Wood's  case, 
2  Lev.  245  is  as  far :  there  the  title  of  the  office  was  tried  in  an  action 
for  the  profits. 

Holt,  Chief  Justice.  These  actions  have  crept  in  by  degrees.  I 
remember,  in  the  case  of  Mr.  Aston,  in  a  dispute  about  the  title  to 
the  office  of  clerk  of  the  papers  in  this  court,  there  were  great  coun- 
sel consulted  with;  and  Sir  William  Jones  and  Mr.  Saunders  were 
of  opinion,  an  indebitatus  assumpsit  would  not  lie,  upon  meeting 
and  conferring  together,  and  great  consideration.  If  two  men  reckon 
together,  and  one  overpays  the  other,  the  proper  remedy  in  that  case 
is  a  special  action  for  the  money  overpaid,  or  an  account;  and  yet  in 
that  case  you  constantly  bring  an  indebitatus  assumpsit  for  money  had 
and  received  to  the  plaintiff's  use.  Suppose  a  person  pretends  to  be 
guardian  in  socage,  and  enters  into  the  land  of  the  infant,  and  takes 
the  profits,  though  he  is  not  rightful  guardian,  yet  an  action  of  account 
will  lie  against  him.  So  the  defendant  in  this  case  pretending  to 
receive  the  money  the  debentures  were  sold  for  in  the  right  of  the 
intestate,  why  should  he  not  be  answerable  for  it  to  the  intestate's 
administrator  ?  If  an  action  of  trovpr  shoulrl  bp  hrnugbt  by  t.bej)Tain- 
tiff  for  these  debentures  aftfn^ij^nTiPTrLiri  tbis  indebitatus  assumpsit. 
he,.may.jiLead  tlws^i££flv£ixin_bar  of  the  action  of  trover,  in  the  same 
manner,  as  it  would  have  been  a  good  plea  in  bar  for  the  defendant 
tolTave  pleaded  to  the  action  of  trover,  that  he  sold  the  debentures, 
and  paid  to  the  plaintiff  in  satisfaction.  But  it  may  be  a  doubt  if  this 
recovery  can  be  pleaded  before  execution.  This  recovery  may  be  given 
in  evidence  upon  not  guilty  in  the  action  of  trover,  because  by  this 
action  the  plaintiff  makes  and  affirms  the  act  of  the  defendant  in  the 
sale  of  the  debentures  to  be  lawful,  and  consequently  the  sale  of  them 
is  no  conversion. 

Afterwards  the  last  day  of  the  term,  upon  motion  to  the  court, 
they  gave  judgment  for  the  plaintiff.  And  Holt  said,  that  he  could 
not  see  how  it  differed  from  an  indebitatus  assumpsit  for  the  profits 
of  an  office  by  a  rightful  officer  against  a  wrongful,  as  money  had  and 
received  by  the  wrongful  officer  to  the  use  of  the  rightful.^ 

*In  an  able  and  instructive  article  "On  the  right  to  waive  a  tort  and  sue  in 
assumpsit,"  3  Albany  Law  Journal,  141  et  seq.,  Judge  Cooley  says:  "The  right 
to  waive  a  tort  and  sue  in  assumpsit,  seems  to  have  been  first  distinctly 
recognized  in  Lamine  v.  Dorrell." 

For  the  various  steps  by  which  assumpsit  swallowed  up  account  and  debt, 
see  Mr.  Ames  in  2  Harv.  Law  Rev.  67. 

Cummings  v.  Vorce  (1842)  3  Hill,  282  (valuable  as  to  plaintiflF's  various 
remedies);  Roberts  v.  Evans  (1872)  43  Cal.  380;  Fiquet  v.  Allison  (1864) 
12  Mich.  328  (assumpsit  against  tenant  for  removing  wheat)  ;  McGoldrick  v. 
Willits  (1873)  52  N.  Y.  612;  Bowman  v.  Browning  (1856)  17  Ark.  599; 
Huganir  v.  Cotter   (1899)    102  Wis.  323;  Krump  v.  First  State  Bank   (1898) 


CHAP.    I.]  HINDMARCH    V.    HOFFMAN.  109 

HINDMAECH  v.  HOFFMAN. 

Supreme  Court  of  Pennsylvania,  1889, 

[127  Pennsylvania  State,  284.^] 

Mr.  Justice  Sterrett  delivered  the  opinion  of  the  court : 

On  the  morning  of  October  10,  1885,  Rj^chard_  Savanack  stole  from, 
plaintiff,  in  Buffalo,  N.  Y.,  a  large  sum  of  money,  four  hundred 
dollars  of  which  he  afterwards,  on  the  same  day,  definsited  with  deferid- 
_ant^  to  be  returned  to  him  or  upon  his  order.  WheiL—dfifend^nt 
received  the  money,  he  was  ignorant  of  the  fact  that  it  had  been 
stolen  from  plaintiff  by  Savanack,  but,  while  it  was  still  in  his 
possession  and  under  his  control,  Vip  wag  xjotified  of  that  fact  by 
plaintiff's  attorney,  and  that  plaintiff  claimed  it  as  his  property. 
yo_twithstanding  thejiotice^ejiXterward^  pnirl  fhp  Timnpy  "upon  the 
order  of  Savanack,  to  Messrs.  Brundage,  Weaver  &  Bell,  of  Buffalo, 
receiving  from  them  a  bond  to  indemnify  him  against  any  liability  to 
any  other  person  for  the  money."  Afterwards,  upon  defendant's 
refusal  to  pay  the  amount  to  plaintiff,  this  action  of  assuTnpsit  was 
brought  to  recover  the  same. 

It  does  not  appear  to  have  been  even  questioned  in  the  court  below, 
that,  upon  the  established  facts,  plaintiff  had  a  good  cause  of  action, 
but  the  learned  judge  was  of  opinion  that  he  could  not  recover  in  the 
present  form  of  action,  and  he  accordingly  entered  judgment  for 
defendant.  His  conclusions  of  law  were  duly  excepted  to,  and  they 
now  constitute  the  specifications  of  error  before  us. 

As  found  by  the  learned  judge,  the  money  sued  for  as  money 
had  and  received  by  defendant  to  the  use  of  plaintiff,  never  belonged 
to  Savanack,  nor  could  he  have  legally  recovered  any  part  of  it.  On 
the  contrary,  it  was  plaintiff's  money,  stolen  from  him  by  Savanack, 
and  by  the  latter  left  with  the  defendant.  While  it  was  thus  in  his 
custody  and  under  his  control  he  was  fully  informed  of  the  theft,  and 
also  that  plaintiff,  as  owner  of  the  money,  claimed  it.     Under  these 

8  N.  D.  75;  Downs  v.  Finncgan  (1894)  58  Minn.  112;  Phelps  v.  Conant  (1858) 
30  Vt.  277;  Timber  &  Land  Co.  v.  Brooks  (1891)   109  N.  C.  698.— Ed. 

So  money  received  by  defendant  for  one  purpose,  if  used  by  \\\m  for  another, 
may  be  recovered  in  assumpsit.  Core's  case  (1537)  Dyer,  20a;  De  Bern- 
ales  V.  Fuller  (1790T~14  Easf,  590  note;  Murray  v.  Clay  (1848)  9  Ark.  39; 
Hotchkiss  V.  Judd  (1866)  12  Allen,  447;  Kerrigan  v.  Kelly  (1852)  17  Mo. 
275;  Strong  v.  Bliss  (1843)  6  Met.  393;  Boston  Bank  Cases  (1874)  10  Ct.  CI. 
515,  545;  Bahnsen  v.  Clemmons  (1878)  79  N.  C.  556;  Catlin  v.  Richard  (1865) 
13  Mich.  110;  Parker  v.  Fisher  (1860)  39  HI.  164;  Critzer  v.  McConnel  (1853) 
15  111.  172.— Ed. 

'Reported  also  in  88  Law  Times,  86;  S.  C.  14  Am.  St.  Rep.  842  and  note.— Ed. 


no  HIXDMAECH    V.     HOFFMAN.  [bOOK   II. 

circumstances,  it  was  clearly  his  duty  to  hold  it  for  plaintiff,  and, 
upon  satisfactory  proof  of  ownership,  to  pay  it  over  to  him.  From  the 
existence  of  that  duty  the  law  raised  an  implied  promise  by  defend- 
ant to  do  so,  but,  in  disregard  of  his  duty  in  the  premises,  he  paid  it 
over,  on  the  order  of  the  thief,  to  parties  who  had  no  right  whatever 
to  receive  it.  Justice  demands  that  he  should  now  be  compelled  to  pay 
the  amount  to  the  rightful  owner,  and  there  is  no  good  reason  why  it 
should  not  be  recovered  in  the  present  form  of  action. 

In  Clarke  v.  Shee,  1  Cowp.  197,  it  was  held  that  case,  for  money 
had  and  received,  will  lie  by  the  true  owner  of  money  against  a  third 
person  into  whose  hands  it  came  mala  fide,  provided  its  identity  can 
be  traced  or  ascertained.  Eeferring  to  the  form  of  action  in  that 
case.  Lord  Mansfield  characterized  it  as  "a  liberal  action  in  the 
nature  of  a  bill  in  equity ;  and  if,  under  the  circumstances  of  the  case, 
it  appears  that  the  defendant  cannot  in  conscience  retain  what  is 
the  subject-matter  of  it,  the  plaintiff  may  well  support  this  action." 

In  2  Greenl.  Ev.  13  ed.  §§  102  and  120,  the  principle  is  thus, 
stated :  "Where  the  defendant  is  proven  to  have  in  his  hands  the 
money  of  plaintiff,  which  ex  »quo  et  bono  he  ought  to  refund,  the 
law  conclusively  presumes  that  he  has  promised  to  do  so,  and  the 
jury  are  bound  to  find  accordingly,  and  after  verdict  the  promise  is 
presumed  to  have  been  actually  proved."  "So,  if  money  of  the  plaintiff 
has  in  any  other  manner  come  to  the  defendant's  hands,  for  which 
he  would  be  chargeable  in  tort,  the  plaintiff  may  waive  the  tort  and 
bring  assumpsit  on  the  common  counts." 

x\ssumpsit  was  also  sustained  in  Mason  v.  ^Yaite,  17  Mass.  558,  upon 
the  following  facts :  Bank  notes,  done  up  in  a  package,  were  delivered 
by  the  owner  to  a  carrier,  who,  without  authority,  paid  them  to  a 
third  party  for  a  loss  at  a  faro  table.  In  an  opinion  sustaining  a 
judgment  in  favor  of  the  owner  of  the  notes,  against  the  party  to 
whom  they  were  thus  paid,  the  chief  justice,  after  remarking  that 
trover  would  have  been  the  better  action  but  for  the  difficulty  of 
identifying  bank  notes,  said :  "We  do  not  see,  however,  why  the  action 
for  money  had  and  received  will  not  lie.  The  notes  were  paid  and 
received  as  money,  and  as  to  any  want  of  privity  or  any  implied 
promise,  the  law  seems  to  be  that  where  one  has  received  money  of 
another,  and  has  not  a  right  conscientiously  to  retain  it,  the  law 
implies  a  promise  that  he  will  pay  it  over." 

The  defendant,  in  the  case  at  bar,  did  not  better_his  positioiL.by 
improperly  handing  over  thp  iTTohpy  ifrqTipsFoTi  to'those  who  had  no 
iMght  whatever  to  receive  it,  after  he  knew  it  had  been  stolen  and 
that  plaintiff  was  its  true  owner.  The  undisputed  facts  connected 
wiTh  his^possesSion  of  the  money,  immediately  before  he  parted  with  it, 
are  quite  sufficient  to  raise  such  an  implied  promise  as  will  support 
assumpsit.  '  We  are  therefore  of  opinion  that  the  court  erred  in  not 
entering  judgment  in  favor  of  plaintiff  for  the  amount  claimed,  viz. : 


CHAP.    I.]  MILLER    V.    MILLER.  Ill 

four  hundred  dollars  with  interest  from  May  24,  1886,  the  time  suit 

was  commenced  before  the  city  recorder. 

Judgment  reversed  and  judgment  is  now  entered 
in  favor  of  the  plaintiff  and  against  the  de- 
fendant for  four  hundred  dollars  with  interest 
from  May  24,  1886,  and  costs.^ 


MILLEE  et  al.,  EXECUTOKS  v.  MILLER. 

Supreme  Judicial  Court  of  Massachusetts,  1828. 

[7  PicJcering,  133.] 

Assumpsit  fr>r  mnney-lw^-fma-rpppiyfl^l  Pleas,  the  general  issue 
and  the  statute  of  limitations.  It  appeared  at  trial  that  testator  and 
defendant  were  tenants  in  common  of  a  lot,  and  that  the  defendant 
cut  and  sold  some  wood  from  the  lot  so  held.  For  some  of  the  wood 
sold,  the  defendant  received  in  payment  real  estate.  There  was  no 
evidence  of  any  request  by  the  testator  to  the  defendant  to  account, 
or  to  pay  the  money  received  by  him,  nor  that  the  real  estate  received 
in  payment  for  wood  had  been  sold  by  the  defendant. 

Upon  this  evidence  the  jury  were  instructed  to  find  a  verdict  for 
the  plaintiff  for  one-half  of  the  amount  which  the  defendant  had 
received  in  payment  for  wood  sold  from  the  lot  owned  in  common, 
within  six  years  before  the  commencement  of  this  action,  whether  the 
payment  was  made  in  money  or  real  estate,  or  otherwise.  They  were 
also  instructed  to  include  all  the  payments  made  upon  the  note  within 
that  period,  and  the  credits  given  to  the  defendant  at  the  furnace, 
pro\dded  they  were  satisfied  that  he  availed  himself  of  them. 

A  verdict  was  found  for  the  plaintiff,  and  the  defendant  excepted  to 
the  above  instructions. - 

The  opinion  of  the  court  was  drawn  up  by 

Parker,  C.  J.  It  does  not  appear  that  at  the  trial  there  was  any 
controversy  about  the  title  of  the  parties  to  the  land  from  which  the 
wood  was  taken,  the  price  of  which  was  sued  for  in  this  action.     If 

^So  action  for  money  had  and  received  will  lie  against  an  infant  for  money 
embezzledT"  Bristow  t\  Eastman  (1794)  1  Esp.  172;  Elwell  v.  Martin  ( 1S59 ) 
32  Vt.  217.  See  also:  Howe  v.  Clancy  (1865)  53  Me.  130:  Boston  R.  R.  Co.  v. 
Dana  (1854)  1  Gray,  83;  Gould  v.  Baker  (189G)  12  Tox.  Civ.  App.  699 
(where  the  authorities  are  well  considered). 

To  recover  from  the  defendant  in  the  action  nf  innnev  li;n]  nnd  rpceived. 
money  must  have  come  to  the  hands  of  the  defendants.  Manahan  v.  Gibbons 
et  al.  (1822)  TTTJuhiis.  427;  De\U-y  v.  Supervisors  (1875)  62  X.  Y.  294  (hold- 
ing defendant  liable  for  benefit  actually  received)  ;  X.  Y.  Guaranty  Co.  v. 
Gleason   (1879)   78  X.  Y.  503. 

^Short  statement  substituted  for  tliat  of  the  original  report. — Ed. 


113  WATSON    V.    STEVER.  [BOOK    II. 

that  had  been  the  point  in  dispute,  the  plaintiff  might  have  been  non- 
suited, and  turned  over  to  his  writ  of  entry  or  petition  for  partition. 
The  action  proceeded  on  the  admitted  fact,  that  the  plaintiff  and 
defendant  were  tenants  in  common  of  certain  land,  and  the  question 
was,  whether  the  wood  was  taken  from  that  land,  and  if  so,  whether 
the  defendant  was  liable  for  a  moiety  of  the  proceeds.  We  think  the 
objection  since  raised,  that  the  action  involved  the  question  of  title 
to  real  estate,  cannot  now  be  made. 

As  to  tlie  objection  founded  on  the  statute  of  limitations,  we  think 
the  jury  were  instructed  right,  viz.,  that  the^  statute  began  to  run 
from  the  time  when  the  mnTipy  was_rgp.pivpd^  and  Tiot  from  the  time 
of^  the  sale  of~the  wood.  Jn^  this  action  the  plaintiff  afhrms 
fhe  sale  and  asks  for  his  share  of  the  jprqceeds^  He  had  a  right 
to  waive  his  actioii  oftrespass^given JbyiJhe  statutp  nnrl  jTL.£mTsirlpr 
the  defendant  as  his  agent_in__di&P-0.aing:  ol  thfi-JEoM.  This  isfor  the 
Benefit  of  the  defendant,  as  he  can  deduct  all  reasonable  charges,  and 
is  answerable  only  to  the  extent  of  funds  which  he  has  received. 

In  regard  to  the  objection  that  the  price  of  some  of  the  wood  was 
received  in  real  estate,  we  think,  flS-thg^salf  was  made  for  money,  the 
defendantwas_aiiswerable  for  the  pricp  when  he  discharged_JjiR_  pur- 
cj^aser,^  wHjtliei.  hereceived  cash_or^  any  thing  else.  He  may  be  con- 
sidered as  the  purchaser  of  the  real  estate  with  the  money  for  which 
he  sold  the  wood.  The  plaintiff  consents  to  the  sale  for  money,  but  not 
that  real  estate  shall  be  substituted.  Suppose  after  selling  the  wood 
for  money  to  be  paid  at  a  future  day,  the  defendant  had  set  off  a  debt 
which  he  owed  the  purchaser,  for  the  price;  he  would  virtually  have 
received  the  money.    So  he  has  by  taking  the  real  estate.^ 


WATSON  V.  STEVEK. 

Supreme  Court  of  Michigan,  1872. 

[25  Michigan,  386.] 

CooLEY,  J.  Stever,  as  assignee  of  one  Sheldon,  sued  Watson  in 
assuinpsit  to  recover  the__£aliL£— ^  logs  which  Watson  had,  taken 
possession  of,  claiming  to  have  bought  of  third  persons.  There  is  no 
dispute  that,  if  the  logs  belonged  to  Sheldon,  Watson. was-14»bk-^r 
thcir_yalue  in  trespass  or  trover ;  buLthcre  had  never  bcenjLay  promise 
on  hjs_part  to  pay  Sheldon  for  them,  and,  on  the  contrary,  he  had 
always  denied  hTs~right.    If  there  was  any  exception  to  this  statement, 

^An  action  for  money  had  and  received  will  noj^lie  to  renover  mnnpy  pv- 
pended  on  account  of  the  tortious  act  of  the  defendant.  Foster  v.  Dupre 
(1817T~5  Martin,  T7. 

And  see  on  the  general  question  Ainslie  v.  Wilson  (1827)  7  Cow.  662; 
17  Am.  Dec.  532,  537,  note. 


CHAP.    I.]  WATSON   V.   STEVER,  113 

it  was  on  one  occasion  when  Sheldon's  agent  demanded  certain  logs, 
and  Watson  said,  if  the  agent  could  identify  any  in  his  possession  as 
belonging  to  Sheldon,  he  would  pay  for  them.  One  was  identified 
and  paid  for,  and  the  agent  said  more  of  them  belonged  to  Sheldon, 
but  as  he  could  not  identify  them,  Watson  refused  to  recognize  any 
further  right.  Tt  was  nnt  shown  that  W«atson  had  sold  any  of  the,  logs. 
The  circuit  judge  charged  the  jury,  that  if  they  found  Sheldon  owned 
the  logs,  and  they  were  used  by  Watson  without  Sheldon's  consent, 
Watson  was  liable  for  the  value,  in  this  form  of  action.  And  he  refused 
to  charge,  as  requested  by  defendant,  that  if  Watson  took  and  retained 
the  property  under  a  bona  fide  claim  of  title  in  himself,  the  plaintiff 
could  not  recover  in  this  action. 

There  are  not  wanting  decisions  which  support  the  rulings  of  the 
circuit  judge ;  but  the  great  weight  of  authority,  as  well  as  the  tendency 
of  recent  decisions,  is  the  other  way.  If  one  jias  taken  possession  of 
property,  and  sold  or  disposed  of  it,  and  rpneivprj^ money  or  mnney^s 
woffh  therefor,  the^ wner  is  not  compellable  to  treat  him  as  a  wrong- 
doer, but  inay  affirm  the  sale,  as  made  on  his  behalf,  and  demandin 
this  form  of  action  the  benefit  of  the  transaction.  But  we  cannot  safely 
say  the  law  will  go  very  much  further  than  this  in  implying  a  promise, 
where  the  circumstances  repel  all  implication  of  a  promise  in  fact. 
Damages  foratrespass  are  not  in  general  recoverable  in  assumpsit ; 
and  in  the  case  of  the  taking  of  personal  property,  it  is  generally  Jield 
essential  that  asale  by  the  defendant  shfluld  be  shown. — Jones  v.  Hoar, 
5  Plck:"2857  Glass  Co.  v.  Wolcott,  2  Allen.  227 ;  Stearns  v.  Dilling- 
ham, 22  Vt.  627;  Mann  v.  Locke,  11  N.  H.  248;  Smith  v.  Smith, 
43  N.  H.  536;  Willet  v.  Willet,  3  Watts,  277;  Pearsoll  v.  Chapin,  44 
Penn.  St.  9 ;  Guthrie  v.  Wickliffe,  1  A.  K.  Marsh.  83 ;  Fuller  v.  Duren, 
36  Ala.  73 ;  Sanders  v.  Hamilton,  3  Dana,  552 ;  Barlow  v.  Stalworth, 
27  Geo.  517;  Pike  v.  Bright,  20  Ala.  332;  Tucker  v.  Jewett,  32  Conn. 
563 ;  Emerson  v.  McNamara,  41  Me.  565  ;  Morrison  v.  Eogers,  2  Scam. 
317;  O'Eeer  v.  Strong,  13  111.  688;  Elliott  v.  Jackson,  3  Wis.  649. 
The  case  of  Fiquet  v.  Allison,  12  Mich.  330,  on  which  reliance  was 
placed  by  defendant  in  error,  is  clearly  distinguishable  from  this.  There 
the  parties  stood  in  contract  relations  as  tenants  in  common  in  respect 
to  the  property  in  question ;  and  when  the  defendant  appropriated  his 
co-tenant's  share,  and  refused  to  recognize  his  right  therein,  he  was, 
as  the  court  pointed  out,  guilty  of  breach  of  a  duty  which  the  law 
implied  from  his  express  contract.  This  case  present?  no  correspond- 
ing feature,  and  to  sustain  an  action  as  upon  an  implied  contract  here 
would  be  to  disregard  the  primary  distinctions  in  the  forms  of  action. 

The  judgment  must  be  reversed,  with  costs,  and  a  new  trial  ordered. 

Campbell  and  Graves,  JJ.,  concurred. 

Christiancy,  Ch.  J.,  did  not  sit  in  this  case.^ 

'Pike  V.   Bright    (185G)    29  Ala.   332;   Sandeen  v.  Kansas  City  R.  R.  Co. 
(1883)  79  Mo.  278;  Miller  v.  King  (1880)  67  Ala.  575;  Fuller  v.  Duren  (1860) 


114  NOEDEX    V.    JONES.  [BOOK   II. 

NORDEN  V.  JOKES. 

Supreme  Court  of  Wisconsin,  1873. 

[33  Wisconsin,  600. J 

Dixon,  C.  J.^  The  question  presented  on  the  rejection  of  the  $6.00 
item  is  an  interesting  one,  upon  which  there  exists  considerable  con- 
trariety of  opinion  and  decision,  botli  in  England  and  this  countr}'. 
It  was  a  charge  of  jhat  sum  made  by  the  defendant  agninst  the  phiiritifp 
for  pasturing  the  plaintiff's  cattle,  which  the  defendant  testified  the 

pTaiutitf  JinrMpt  inl-n  hl§:^the  clefendailt's^  field^Jiy  laying  rlnwn  dpfmirl- 
anFsTence  for  that  purpose.  Tb^  objpption  sustainpri  by  thp  jjistice 
was^_jhat_the^ laying  down  nf  tbp  fpnf;^  and  turning  in  of  the  ca.ttle 
was  a  trespass  on  the  part  aflhe-plaintiff. jv^hich  could  not  be  brojight 
in  or  proved  as  a  set-off  or_cross-demand  in  this  form  of  action,  but 
that  the  defendant  must  resort  to  his  action  of  trespass  against  the 
plaintiff  to  recover  the  damages  which  he  has  sustai^eH".  It  is  not 
to  be  denied  that  there  are  numerous  decisions  of  most  respectable 
courts  sustaining  this  view,  while  on  the  other  hand  there  is  an  equal 
weight  of  most  respectable  authority  also  for  holding  that  a  promise 
to  pay  will  be  implied  under  such  circumstances,  upon  which  an  action 
of  assumpsit  may  likewise  be  maintained.  The  question  being  new  in 
this  court  under  our  present  statutes,  we  are  at  liberty  to  adopt  such 
rule  as  in  our  judgment  will  best  subserve  the  ends  of  justice,  which  is 
or  ought  to  be  the  object  of  all  rules  laid  down  in  the  course  of 
judicial  proceedings.  The  cases  of  Conklin  v.  Parsons,  1  Chand.  240, 
and  Pierce  v.  Hoffman,  4  Wis.  277,  were  controlled  by  the  language 
of  subdivision  3  of  sec.  1,  ch.  94,  R.  S.  1849,  then  in  force.  That 
subdivision  was  omitted  altogether  in  the  present  revision,  thus  making 
a  material  change  in  the  law  of  set-off.  R.  S.  1858,  ch.  126,  sec.  1  (2 
Tay.  Stats.  1448,  §  1).  The  language  of  the  court  in  Conklin  v. 
Parsons  favors  rather  than  disfavors  the  general  right  to  waive  the 
tort  and  sue  in  assumpsit  for  a  mere  conversion  of  property.  And  see 
Keyes  v.  Railway  Co.,  25  Wis.  691. 

36  Ala.  73  (exchaTi<Te  of  property)  ;  Smith,  Foley  &  Co.  v.  Jernigan  (1887) 
83  Ala.  256;  Chamblee  v.  MeKenzie  (1876)  31  Ark.  155;  Barlow  v.  Stalworth 
(1859)  27  Ga.  517;  Rogers  v.  Greenbush  (1860)  57  Me.  441;  Jones  v.  Hoar 
(1827)  5  Pick.  285  (and  see  elaborate  opinion  in  the  note);  Berkshire 
Glass  Co.  V.  Wolpott  (1861)  2  Allen,  227;  Smith  v.  Smith  (1862)  43  N.  H. 
536  (overruling  Hill  v.  Davis  (1826)  3  N.  H.  384);  Bethlehem  Borough  v. 
Perseverance  Fire  Co.  (1876)  81  Pa.  St.  445;  Schweizer  v.  Weiber  (1853) 
6  Rich.  15!)  (watches  destroyed  by  fire)  ;  Tuttle  v.  Campbell  (1889)  74  Mich. 
652;  Barnum  v.  Stone  (1873)  27  Mich.  332;  Quimby  v.  Lowell  (1897)  89  Me. 
547.— Ed. 

'Part  of  the  opinion  is  omitted. — Ed. 


CHAP.    I.]  NORDEX   V.   JONES.  115 

Mr.  Nicholas  Plill,  in  his  notes  to  the  cases  of  Putnam  v.  Wise, 
]  I-Iill,  240,  and  Berly  v.  Taylor,  5  Hill,  584,  has  collected  nearly  all 
the  adjudications  up  to  the  time  of  publication  (1844),  as  well  as  those 
which  hold  the  narrower  rule,  which  in  general  limits  the  right  to 
waive  the  tort  and  sue  in  assumpsit  to  cases  where  goods  have  been 
taken  from  the  plaintiff  and  sold  by  the  wrongdoer  and  the  money 
received  by  him,  as  those  which  establish  a  more  liberal  principle  by 
declaring  the  right  of  the  injured  party  to  waive  the  tort  and  bring 
assumpsit  in  a  variety  of  cases  where  the  fruits  of  the  trespass  or  wrong 
liave  not  become  or  been  turned  into  money  or  its  equivalent  in  the 
hands  of  the  tortfeasor.  Judge  Eedfield,  in  Centre  Turnpike  Co.  v. 
Smith,  12  Vt.  217,  resolves  the  cases  coming  within  the  narrower  rule 
into  four  classes,  to  which  the  case  of  Jones  v.  Hoar,  5  Pick.  290,  adds 
a  fifth  class  not  named  by  Judge  Redfield.  The  underlying  question 
in  all  the  cases  obviously  is,  When  and  under  what  circumstances  will 
the  law  imply  a  promise  on  the  part  of  the  defendant  to  pay  ?  "It  is 
a  principle  well  settled,"  say  the  court,  in  Webster  v.  Drinkwater, 
5  Greenl.  322,  "that  a  promise  is  not  implied  against  or  without  the 
consent  of  the  person  attempted  to  be  charged  by  it.  And  where  one  is 
implied,  it  is  because  the  party  intended  it  should  be,  or  because  natural 
justice  plainly  requires  it,  in  consideration  of  some  henefit  received." 
Tested  by  the  latter  as  the  governing  principle  upon  which  the  law 
raises  a  promise  to  pay,  it  is  very  obvious  that  the  more  liberal  rule  is 
the  correct  one,  and  that  which  should  prevail. 

And  such  is  the  rule  for  which  Mr.  Hill  contends,  of  whose  great 
ability  and  acknowledged  attainments  in  his  profession  it  is  unneces- 
sary for  us  here  to  speak.  It  will  be  conceded  by  all  that  his  opinion 
is  entitled  to  very  great  weight,  sustained  as  he  is  by  the  language 
of  the  court  in  the  two  cases  to  which  his  notes  are  appended,  as  well 
as  by  other  decisions  to  which  he  refers,  and  especially  those  in  New 
Hampshire  and  Maryland.  Hill  v.  Davis,  3  N.  H.  384  ;i  Stockett  v. 
Watkins,  2  Gill  &  John.  326,  342,  343.  We  give  the  concluding  portion 
or  paragraph  of  his  note  to  the  first  case,  with  his  citations,  as  they 
appear  in  the  volume  above  referred  to.  He  says:  "The  above  cases 
from  the  Maryland  and  New  Hampshire  reports  are  sustained  by  the 
dicta  of  Jackson,  J.,  in  a  Massachusetts  case  decided  some  time  pre- 
vious to  Jones  V.  Hoar,  supra,  Cummings  v.  Noyes,  10  Mass.  R.  433, 
435,  436.  And  see  the  observations  of  Maison,  senator,  in  Butts  v. 
Collins,  13  Wend.  153,  154;  also  Ford  v.  Caldwell.  3  Hill  (S.  C),  248, 
especially  the  opinion  of  Richardson,  J.,  p.  250.  They  seem  also 
in  accordance  with  the  principle  of  several  English  decisions,  viz.,  that 
the  tortfeasor  should  not  be  allowed,  under  such  circumstances,  to  set 
up  his  own  wrongful  intent  in  disavowal  of  the  implied  promise  which 
the  law  would  otherwise  raise  against  him.     Chitty  on  Contracts,  6; 

'Hill  17.  Davis  (1S2G)  3  N.  H.  384,  was  overruled  by  Smith  v.  Smith  (1862) 
43  N.  H.  53G.— Ed. 


116  NORDEN  V.   JONES.  [bOOK   II. 

Hill  V.  Perrott,  3  Taunt.  274,  275,  per  curiam;  Lightly  v.  Clouston, 
1  id.  112, 114,  per  Mansfield,  C.  J. ;  1  Leigh's  N.  P.  4,  5 ;  per  Maison, 
senator,  in  Butts  v.  Collins,  13  Wend.  154,  155.  Apar^from  all  reason- 
ing of  a  technical  or  artificial  character,  and  Innhing  fn  the  $»l)&fj]jvtial 
erid^fljf  justice^  it  is  quite  difficult  to  see  why  this  priiipiplp^  sjionld 
noflSe  applied  in  cases^like  Jones  v._HoarjLand  Willett  v.  Willett.  supra. 
In  neither^  could  the  defendant  have  been  prejudiced  by  allowingthe 
plaintiff  to  sue  in  assumpsit;  on  the  contrary,  the  practice  generally 
operates  fo  favor  the  defendant,  as  the  plaintiff  thereby  foregoes  his 
Tight  to  damages  for  the  tort  as  such,  and  restricts  himself  to  the 
simple  value  of  the  property.  See  per  Lord  Mansfield,  in  Lindon  v. 
Hooper,  1  Cowp.  419 ;  per  Bayley,  J.,  in  Foster  v.  Stewart,  3  Moule 
and  Selw.  201,  202 ;  per  Maison,  senator,  in  Butts  v.  Collins,  13  Wend. 
156.  The  defendant,  moreover,  gets  the  right  of  set-off,  which  would 
be  precluded  by  denying  the  plaintiff  his  election.  Per  Heath,  J.,  in 
Lightly  V.  Clouston,  1  Taunt.  114,  115.  Nor  would  the  defendant  be 
likely  to  suffer  embarrassment  by  the  form  of  pleading.  Per  Lord 
Mansfield,  in  Lindon  v.  Hooper,  1  Cowp.  414,  419.  And  clearly  he 
could  not  be  said  to  incur  any  hazard  from  a  second  action  in  tort  for 
the  same  matter.  See  1  Phil.  Ev.  333,  7th  ed. ;  Eice  v.  King,  7  Johns. 
20 ;  McLean  v.  Hugaren,  13  id.  184." 

And  in  his  remarks  upon  the  second  case,  5  Hill,  584,  he  says  that 
"the  observations  of  the  judges  in  Young  v.  Marshall,  8  Bing.  43  (21 
E.  C.  L.  215)  are  worthy  of  attention  as  illustrating  the  principle  on 
which  the  English  doctrine  rests.  The  action  was  for  money  had  and 
received,  and  was  brought  by  the  assignee  of  a  bankrupt,  against  the 
sheriff,  on  the  ground  that  he  had  wrongfully  sold  goods  belonging  to 
the  plaintiff  on  a  fi.  fa.;  and  it  was  objected  that  the  action  should 
have  been  trover,  especially  as  the  money  had  been  paid  over  to  the 
execution  creditor  before  suit  commenced.  The  court,  however,  over- 
ruled the  objection,  holding  that  the  plaintiff  might  but  was  not  hound 
to  go  for  the  tort.  Tindal,  C.  J.,  there  stated  the  rule  to  be,  that 
'no  party  is  hound  to  sue  in  tort,  where,  hy  converting  the  action  into 
an  action  on  contract,  he  does  not  prejudice  the  defendant :  and.  sren- 
erally  speaking,  it  is  more  favorable  to  the  defendant  that  he  should  be 
sued  in  contract,  because  that  form  of  action  lets  in  a  set-off,  and 
enables  him  to  pay  money  into  court.'  Bosanquet.  J.,  denied  that  the 
plaintiff  who  brings  n.'isiimpsit  in  such  raseT.-±hereby  affirms  the  acts 
of  the  sheriff;  'he  merehj  waives  his  claim  to  damages  for  a  wrong, 
and  seeks  to  recover  only  the  proceeds  of  the  saTe^'~^ 

"Snd  still  another  most  material  advantage  which  the  wrongdoer 
derives  from  the  waiver  of  the  tort  and  suit  in  contract,  in  this  state, 
is  freedom  from  arrest  and  imprisonment,  to  which  he  would  otherwise 
be  liable  and  miglit  be  subjected. 

We  conclude,  therefore,  that  the  doctrine  of  the  authorities  above 
quoted,  and  for  which  Mr.  Hill  contends,  is  the  better  one,  and  must 


CHAP.    I.]  BRAITHWAITE   V.   AKIN.  117 

accordingly  hold  that  the  justice  was  in  error  when  he  excluded  the 
evidence  offered  by  the  defendant  in  support  of  the  item  in  his  counter- 
claim against  the  plaintiff'  for  the  pasturage  of  the  plaintiff's  cattle. 

The  judgment  of  the  circuit  court  must  be  reversed,  and  the  cause 
remanded  with  directions  to  that  court  to  reverse  the  judgment  of  the 
justice. 

By  the  Court. — It  is  so  ordered.^ 


In  Braithwaitc  v.  Akin  (1893)  3  N.  D.  365,  309,  Corliss,  J.,  said: 
It  is  contended  that  the  defendant  Braithwaite  had  a  right  to 
waive  the  tort  involved  in  the  conxnrsion  of  his  interest  in  the  steam  - 
boat,  and  sue  in  the  assumpsit.  The  averments  of  the  counterclaim 
would  not  bring  him  within  the  rule  that  a  tort  may  be  waived,  as 
it  is  laid  down  in  many  of  the  cases.  The  doctrine  that  the  injured 
party  may  waive  the  tort  and  sue  in  assuinpsTt  is  limited  by  these 
d ecisions  to  ca.^es  w^here  tfre'wYongdoer  has  sold  the  property,  and 
received  therefor  money  or  money^sworth.  Jones  v.  Hoar,  5  Pick. 
290;  Mhoon  v.  Greenfield,  52  M"Tss71:34;  Willet  v.  Willet,  3  Watts, 
277;  Stearns  v.  Dillingham,  22  Vt.  624;  Watson  v.  Stever,  25  Mich. 
387 ;  Balch  v.  Pattee,  45  Me.  41 ;  Kidney  v.  Persons,  41  Vt.  386 ;  1  Am. 
&  Eng.  Enc.  Law,  888;  cases  in  note  to  Webster  v.  Drinkwater,  17 
Am.  Dec.  242;  Tuttle  v.  Campbell,  74  Mich.  652,  42  N.  W.  Eep. 
384;  Moses  v.  Arnold,  43  Iowa,  187.  There  is  no  allegation  in  the 
answer  that  the  interveners  ever  sold  the  steamboat,  or  in  any  manner 
received  money  or  money's  worth  for  her.  "F\ut  ^YP■  j^rf^  ^^^  npininn 
that  this  limitation  of  the  doctrine  that  the  tort  may  be  waived 
is  without  foundation  in  reason  or  principTei  'l'he_whqle  clQclrme  is 
binTTupon  a  fictiop!  It  asserts  that  what  was  done  in  defiance  of 
the  owner's  rights  was  in  law  done  with  the  most  perfect  regard  for 
his  rights;  that  the  wrongdoer  has  received  the  money  for  the  owner, 
or  that  he  has  bought  the  property  from  the  owner  at  its  fair  value. 
This  iiction  is  indulged  only  in  the  interests  of  the  owner,  and  it  rests 
upon  the  receipt  by  the  wrongdoer  of  benefits  accruing  to  him  from 
his  wrongful  acts.  Where  no  benefits  are  received,  the  liability  is  only 
for  the  wrong.  As  this  right  in  the  injured  party  to  turn  the  tort 
lijtbilitvinto  a  conlraeTirabnity  stands  upon  fHe"  receipt  of  benefits 
by^thgwrongdoer,  is  it  norbeneath'  the  dignity  of  any  tribunal  to  draw 
a  distinction  between  the  receipt  of  benefits  in  the  shape~of  cash  and 
the  receipts  of  benetits  m  the  form  of  property  ?  In  our  judgment, 
the  fact  that  a  sale  has  not  been  madeTs  unimportant.  Xot  only  upon 
sound  principle,  but  also  upon  the  foundation  of  strong  authority,  do 

'Evans  v.  Miller  (1880)  58  Miss.  120,  124;  Central  Gas  &  Electric  Fixtures 
Co.  V.  Sheridan  (1892)  22  X.  Y.  Supp.  76;  contra:  Balch  v.  Patten  (1858) 
45  Me.  41.— Ed. 


118  STARR   CASH    COMPANY   V.    REINHARDT.  [bOOK    II. 

we  establish  the  rule  in  this  state  that  the  owner  of  property  con- 
verted may  waive  the  tort  and  sue  in  assumpsit  for  the  benefits  received 
whenever  the  tort  feasor  receives  benefits  of  any  kind  from  the  wrong 
committed,  whether  by  sale  or  by  retention  of  the  converted  property, 
or  in  any  other  manner.  Norden  v.  Jones,  33  Wis.  600-604;  Hill  v. 
Davis,  3  N.  H.  384;  Stockett  v.  Watkins,  2  Gill  &  J.  336-342;  Barker 
V.  Cory,  15  Ohio,  9;  Berley  v.  Taylor,  5  Hill  (N.  Y.)  583;  Terry  v. 
Hunger,  121  N.  Y.  161,  24  N.  E.  Rep.  272;  Fratt  v.  Clark,  12  Cal.  89. 
See  note  to  Webster  v.  Drinkwater,  17  Am.  Dec.  244.  That  the  claim 
of  defendant  Braithwaite  to  recover  in  assumpsit  the  value  of  his 
interest  in  the  boat  would  have  been  a  good  counterclaim  had  he  waived 
the  tort  and  sued  in  assumpsit  cannot  be  doul^ted.  WhfiXLJhe  tojt  is 
waived,  therbqiin  rp>;ts  in  coutrnct,  asjwgll  jorjthe43urpose  of  making  it 
a  caus_e_  of  action  arising  on  contract  within  the  statute  regulating 


counterclaims  as  for  other  purposes.  In  fact,  thesole  object  in  waiving 
the  tort  is  often  for  the  purpose  of  enabling  the  injured  party  to  set 
up  his  claim  as  an  offset,  when,  without  such  waiver,  he  could  not,  be- 
cause of  its  tort  nature,  use  it  as  a  counterclaim.  Norden  v.  Jones, 
33  Wis.  600;  Coit  v.  Stewart,  50  N.  Y.  17;  Brady  v.  Brennan,  25 
Minn.  210;  Car  Co.  v.  Reinhardt  (Com.  PI.  N.  Y.)  20  N.  Y.  Supp. 
872;  Wood  v.  Mayor,  73  N.  Y.  556;  Barnes  v.  McMullins,  78  Mo. 
260;  Becker  v.  Northway,  44  Minn.  61,  46  N.  W.  Rep.  210;  Evans  v. 
Miller,  58  Miss.  120;  Pom.  Rem.  &  Rem.  Rights,  §  801.^ 


STARR  CASH  COMPANY  v.  REINHARDT.    . 

Common  Pleas  of  New  York  City  and  County,  General  Term, 

1892. 

[20  New  York  Supplement,  872.] 

Pryor,  J.  The  action  is  for  the  purchase  price  of  15  cash  carriers, 
sold  and  delivered  by  the  plaintiff  to  the  defendants.  The  answer,  by 
not  denying,  admits  the  price  and  the  sale  and  delivery  of  the  cash 
carriers,  and  then  proceeds  to  plead  a  counterclaim,  as  follows :  That 
there  was  on  the  premises  of  the  defendants  a  certain  car  system  ;  that 
when  the  plaintiff  placed  its  service  in  the  store  of  the  defendants 
it  took  to  itself  the  old  service  of  the  defendants,  and  applied  the  same 
to  its  own  use  and  benefit,  without  the  knowledge  of  the  defendants; 
that  the  reasonable  value  of  the  said  old  service  was  $150 ;  that  the 
defendants  have  demanded  from  the  plaintiff  a  deduction  to  that 
amount  from  its  bill,  and  have  tendered  to  the  plaintiff  the  sum  of 

'See  Newman  v.  Olney  (1898)   118  Mich.  545;  Florida  Cent.  Co.  v.  Scarlett 
(1899)   91  Fed.  349.— Ed. 


CIIAr.    I.]  STARR    CASH    COMPAXY    V.    REIXIIARDT.  119 

$150,  and  hereby  offer  to  allow  judgment  to  be  taken  against  them 
for  the  sum  of  $150,  with  interest  and  costs.  At  the  trial  plaintiff 
moved  for  judgment  upon  the  pleadings,  "on  the  ground  that  the 
answer  did  not  deny  any  of  the  allegations  of  the  complaint,  and  did 
not  set  up  a  counterclaim  which  could  properly  be  interposed  in  this 
action."  The  motion  was  granted,  and  judgment  directed  for  plaintiff 
for  the  full  price  of  the  cash  carriers,  to  which  order  and  direction 
defendants  duly  excepted.  The  sole  question  for  decision  is  whether 
the  facts  alleged  constitute  a  valid  counterclaim. 

Undoubtedly  the  facts  stated  in  the  answer  constitute  a  cause  of 
action  for  conversion.  But  "if,  upon  the  facts  alleged,  a  cause  of  action 
in  tort,  as  well  as  one  on  contract,  may  be  spelled  out,"  the  pleader 
may  elect  to  stand  either  upon  tort  or  contract.  People  v.  Wood,  121 
N.  Y.  532,  24  N.  E.  Eep.  952.  Do  the  defendants  in  their  answer 
rely  upon  tort  or  contract?  Manifestly  upon  contract.  Tlicir  claim 
is_not  damages  for  the  conversion,  but  the  specific  value  of  the  goods 
ajjplied  by  the  plaintiffjo  its  use  and  benefit ;  and  that  value  they  plead 
as  a  counterclaim,  which  would  be  inadmissible  were  the  claim  of  dam- 
agei^for  a  tort.  Beyond  all  controversy,  the  defendants  elect  to  treat 
their  cause  of  action  as  a  claim  upon  contract. 

But  it  does  not  appear  that  the  plaintiff  has  sold  the  thing  taken, — 
the  contrary,  rather;  and  the  question  remains  whether  the  owner 
of  a  chattel  converterl.  bnt  not  parted  with,  for  money  or  its  equivalent, 
, mav^^[ve  tjie^tort^  and  sue  the  wronorloer  in  assumpsit  as  upon  an 
implied  contract  of  sale_  It  is  conceded  that  in  England,  and  m  many 
states  of  the  Union^  tjie  query  must  be  answered  in  the  negative.  See 
eases  collected  by  Mr.  FreenianTn  his  note  to  VVe5"ster  v.  Drinkwater, 
17  Amer.  Dec.  242.  N'ay,  more,  in  this  state  the  law  was  that  trover 
could  not  be  turned  into  assumpsit,  for  money  had  and  received,  until 
the  thing  converted  was  exchanged  by  the  wrongdoer  for  money  or 
money's  worth.  McKnight  v.  Dunlop,  4  Barb.  3G,  42 ;  Harpending  v. 
Shoemaker,  37  Barb.  270,  291 ;  Osborn  v.  Bell,  5  Denio,  370;  Tryon  v. 
Baker,  7  Lans.  511,  514;  McGoldrick  v.  Willits,  52  X.  Y.  614,  620. 
"When  the  tort  is  waived,  and  assum-psit  is  brought,  the  receipt  of  the 
money  on  the  sale  of  the  goods  gives  the  cause  of  action."  Schroeppel 
V.  Corning,  6  IsT.  Y.  107,  112.  Meanwhile,  however,  the  current  doc- 
trine was  subjected  to  destructive  criticism  as  well  by  courts  as  by 
commentators.  jSTotes  of  jSTicholas  Hill  to  Putnam  v.  Wise,  1  Hill,  234, 
and  Berly  v.  Taylor,  5  Hill,  584;  2  Greenl.  Ev.  §  108,  note  5;  Cooley, 
Torts,  95;  Hil.  Torts,  42.  "A  more  liberal,  and,  we  think,  a  more 
sensible,  rule,  is  laid  down  by  the  later  text  \\Titers,  and  sustained 
by  many  courts,  to  the  effect  that  the  tort  may  be  waived,  and  assump- 
sit maintained,  when  the  property  tjiken  has  been  converted  either  into 
money  or  into  any  other Jieneficial  use  by  the  wrongdoer."  Evans  v. 
Miller,  58  Miss.  120.  "We  see  no  reason  why  the  right  to  waive  the 
tort  and  maintain  assumpsit  should  not  be  as  well  applicable  to  the 


120  STARR    CASH    COMPANY    V.    REINHARDT.  [BOOK   II. 

case  where  the  defendant  has  actually  appropriated  to  his  own  benefit 
and  used  up  the  plaintiff's  goods  himself  as  where  he  has  sold  them 
to  another  and  received  the  money,  though  in  the  former  case  the 
action  must  be  for  goods  sold  arid  delivered,  and  not  for  money  had 
and  received."  Talcott,  J.,  in  Abbott  v.  Blossom,  66  Barb.  353,  356. 
"If  the  defendant  had  taken  the  wheat  tortiously,  the  plaintiff,  accord- 
ing to  the  well-known  right  of  election,  might  have  brought  assumpsit 
for  goods  sold  and  delivered."  Cowex,  J.,  in  Putnam  v.  Wise,  1  Hill, 
234,  240.  "Butts  has  therefore  an  election  against  Collins.  He  can 
maintain  trover  or  assumpsit,  and  in  the  latter  action  recover  the  value 
of  the  flannels  under  the  common  counts  for  money  had  and  received, 
or  for  goods  sold."  Maisox,  Senator,  in  Butts  v.  Collins,  13  Wend. 
139,  154.  At  last,  in  Hawk  v.  Thorn,  54  Barb.  164,  it  was  expressly 
ruled  that,  "where  one  has  unlawfully  taken  possession  of  another's 
property,  the  tort  may  be  waived,  and  an  action  brought  for  its  value." 
And  in  Terry  v.  Hunger,  121  N.  y.  161,  24  N.  E.  Rep.  272,  the  court 
of  appeals,  per  Peckham,  J.,  said :  "The  owner  of  personal  property 
which  has  been  wrongfully  converted  by  another  man,  although  the 
property  is  retained  by  the  wrongdoer,  may  waive  the  tort,  and  sue 
for  and  recover  its  value,  upon  an  implied  contract  of  sale."  The  rule 
as  thus  held  finds  support  in  the  adjudications  of  other  states.  Hill  v. 
Davies,  3  N.  H.  384;  Stockett  v.  Watkins,  2  Gill  &  J.  326,  343,  343; 
Halleck  v.  Mixer,  16  Cal.  574;  Fratt  v.  Clark,  12  Cal.  89;  Barker  v. 
Cory,  15  Ohio.  9.  It  is  commended,  however,  to  acceptance  by  the 
analogies  of  the  law  and  the  interests  of  justice.  A  consent  induced  by 
fraud  is  no  consent ;  and  yet  the  vendor  in  a  fraudulent  sale  may  waive 
the  tort,  and  sue  for  goods  sold.  It  is  conceded  that  upon  a  conversion, 
if  the  goods  be  parted  with  by  the  wrongdoer,  he  may  be  held  as  for 
money  had  and  received ;  his  promise  to  pay  being  arbitrarily  forced 
upon  him  by  implication  of  law.  So^  if  he  retain  the  goods,  the  owner 
should  be  allowed_to  Jxeatjthe  transaction  as  a  sale.,,  and  the  law  should 
irtrpTy"a  promise  to  pay  their  value._  In  such  case  the  tort  feasor  will 
noFbe  allowed  to  set  up  his  own  wrongful  intent,  in  disavowal  of  the 
implied  promise  which  the  law  would  otherwise  raise  against  him. 
Hill  V.  Perrott,  3  Taunt.  274,  275;  Lightly  v.  Clouston,  1  Taimt.  112, 
114,  per  Mansfield,  C.  J.  The  rule  is  advantageous  to  a  defendant, 
since,  being  sued  on  contract  instead  of  in  tort,  he  is  exempt  from 
arrest,  and  may  plead  an  offset.  "ISTo  party  is  bound  to  sue  in  tort 
when,  by  converting  the  action  into  an  action  on  contract,  he  does  not 
prejudice  the  defendant ;  and,  generally  speaking,  it  is  more  favorable 
to  the  defendant  that  he  should  be  sued  in  contract,  because  the  form  of 
action  lets  in  a  set-off,  and  enables  him  to  pay  money  into  court." 
TiNDAL,  C.  J.,  in  Young  ;;.  Marshall,  8  Bing.  43.  Finally,  by  con- 
verting the  tort  into  a  contract,  and  so  opening  the  case  to  a  counter- 
claim, all  the  controversies  between  the  parties  may  be  adjusted  in  a 
single  litigation.    The  conclusion  is  that  the  defendants  had  an  option 


CHAP.    I.]  FERGUSON    V.    CARRINGTON.  121 

to  waive  the  conversion,  and  to  claim  as  for  goods  snlrl  nnrl  t]o]\Y(^s(»r\ ^ 
and  that,  by  their  answer,  they  elected  to  proceed  upon  contract.  -The 
result  is  that  the  counterclaim  is^ valid,  and  the  judgment  overruling 
it  erroneous.  Judgment  reversed,  ajid  a  new  trial  ordered,  with  costs 
to  appellants  to  abide  the  event.     All  concur.^ 


FEKGUSON  AND  ANOTHEE  v.  CAKRINGTON". 

King's  Bench,  1829. 

[9  Barnewall  &  Creswell,  59.] 

Assumpsit  for  .goods^sold  and  delivered.  Plea,  general  issue.  At 
the  trial  before  Lord  Tenterden,  C.  J.,  at  the  London  sittings  after 
last  term,  it  appeared  that  the  plaintiffs,  between  the  29th  of  March 
and  the  12th  of  May,  1828,  sold  to  the  defendant  various  quantities  of 
goods,  amounting  in  the  whole  to  £282,  which,  by  the  contract  of  sale, 
were  to  be  paid  for  by  bills  accepted  by  the  defendant ;  and  that  such 
acceptances  were  given,  but  had  not  become  due  at  the  time  when  the 
action  was  commenced.  It  appeared  further,  that  the  defendant  imme- 
diately after  receiving  the  goods,  sold  them  at  reduced  prices  to  other 
persons.  It  was  contended,  under  these  circumstances,  that  it  was 
manifest  that  the  defendant  purchased  the  goods  with  the  precon- 
ceived design  of  not  paying  for  them ;  and  that,  as  he  had  sold  them, 
the  plaintiffs  might  maintain  an  action  to  recover  the  value  though 
the  bills  were  not  due.  Lord  Tenterden,  C.  J.,  was  of  opinion,  that 
if  the  defendant  had  obtained  the  goods  with  a  preconceived  design  of 
'n9t_paying  for  them,  no  pTOpei^y^passecT't^o  him  by  thp  c"utrnct  of 
sale,  and  that  it  was  competent  to  the  plaintiffs  to  have  brought  trover, 
and  toTiave  treated  the  contract  as  a  nullity,  and  to  have  considered 
the  defendant  not  as  a  purchaser  of  the  goods,  but  as  a  person  who  had 
tortiously  got  possession  of  them ;  bjit  that  the  plaintiffs  by  bringing 
assumpsit  had  affirmed^that,  at  thejlim£._o£jLhe_action^bxoj3gjit.  there 
was  a  contract  existing  between  them  and  the  defendant.  The  only 
contract  proved  was  a  sale  of  goods  on  credit.  The_time  of  credit  had 
noi_e_xpired^  and  consequently  the  action  was  brought  too  soon.   " 

F.  Pollock  now  moved  for  a  new  trial,  and  contended,  that  the 
plaintiffs  might  sue  for  the  price  of  the  goods  without  waiting  until  the 
expiration  of  the  credit  given;  that  credit  having  been  obtained  in 
pursuance  of  a  fraudulent  design  to  cheat  the  plaintiffs. 

Bayley,  J.  The  plaintiffs  have  aflfirmcd  the  contract  by  bringing 
this  action.  The  contract  proved  was  a  sale  on  credit,  and  where  there 
is  an  express  contract,  the  law  will  not  imply  one. 

^And  see  the  excellent  case  of  Abbott  v.  Blossom  (1873)  66  Barb.  353, 
referred  to  in  principal  case. 

See  also,  Pomeroy's  Code  Remedies  (3d  ed.)   653,  654. — Ed. 


122  EOTII    V.    PALMER.  [BOOK   II. 

LiTTLEDALE,  J.  At  the  time  when  this  action  was  brought,  the 
defendant  was  not  bound  by  the  contract  between  him  and  the  plain- 
tiffs to  pay  for  the  goods.  The  plaintiffs  claim  to  recover  for  breach 
of  the  contract. 

Parke,  J.  As  long  as  the  contract  existed,  the  plaintiffs  were  bound 
to  sue  on  that  contract.  They  might  have  treated  that  contract  as  void 
on  the  ground  of  fraud,  and  brought  trover.  By  bringing  this  action, 
they  affirm  the  contract  made  between  them  and  the  defendant.^ 


EOTH  AND  OTHERS  v.  PALMER. 
TOBEY  AND  OTHERS  v.  PALMER. 

Supreme  Court  of  New  York,  1858. 
[37  Barbour,  653.] 

By  the  Court,  Hogeboom,  J.  The  complaints  in  these  actions  con- 
tain two  or  more  counts  confessedly  on  contract  and  well  pleaded,  and 
another  count  which  sets  forth,  substantially,  that  thejlaintiffs  sold 
and_delivered  to  the,_d£fendant  goodsto  a  certain  amount,  on  a.credit  of 
si^months;  that  the  ^defendant  was  insolvent  at  the  time  of  the  said 
sales,  and  purchased  said  goods  withoui_any  intent  to  pay  for  them  and 
with  intent J;^o  defraud  the  plaintiffs  of  their  value;  and  that  by  reason 
ofsaM  fraud  the  defendant  became  liable  to  pay  for  the  goods  immedi- 
ately upon  their  delivery.  They  therefore  (the  goods  not  having  been 
paid  for)  demand  judgment  for  the  amount  of  said  sales,  with  inter- 
est. The  actioJi  is  brought4>efore  tl^e-expfration  &f  the  time-of credit. 
The  jlcfendant  demurs,  for  the  joinder  of  improper  causes  of  action 
in  one  complaint7^d  for  the  want  of  any  sufficient  cause  of  action 
being  set  forth  in  the  last  count.  The  judge  at  special  term  held  the 
complaint  good,  and  the  defendant  appeals  from  his  order  to  the 
general  term. 

To  avoid  the  objections  presented  by  the  demurrer,  the  plaintiffs 
must  satisfy  the  court,  1.  That  the  cause  of  action  set  forth  in  the  last 
count  of  the  complaint  is  upon  contract.  2.  That  fraud  is  sufficiently 
set  forth  therein  to  justify  a  rescission  of  the  contract.  3.  That  no 
specific  act  on  the  part  of  the  plaintiffs,  other  than  bringing  this  action, 
was  necessary  to  be  done  to  manifest  the  plaintiff's  intent  to  rescind 
the  contract.  4.  That  the  facts  justify  the  plaintiffs  in  making  their 
election  to  sue  in  assumpsit  rather  than  tort.  5.  That  in  making  such 
election  they  do  not  thereby  adopt  the  express  contract,  but  rely  on  the 

'The  followirifj  nisi  prius  decisions  of  Eyre  and  Kenyon,  C.  JJ.,  were 
contra:  De  Symons  v.  IMinchwich  (1795)  1  Esp.  430;  Hogan  v.  Shec  (1796) 
1  id.  522.— Ed. 


CHAP.  I.]  ROTH  V.  rAL:siER.  123 

implied  contract  to  pay,  arising  from  the  delivery  and  the  defendant's 
possession  of  the  goods. 

1.  I  think  the  plaintiffs  meant  to  bring  their  action  upon  contract, 
and  that  the  terms  employed  favor  the  conclusion  that  the  count  is  on 
contract,  rather  than  in  tort.  It  alleges  a  sale  and  delivery  of  the 
goods:,  a  fraud  simply  to  avoid  the  term  of  credit,  a  liability  to  pay 
for  the  same  upon  delivery,  and  a  demand  of  judgment  for  the  price 
or  value,  with  interest  from  the  time  of  delivery.  The  words  bear  that 
construction  rather  than  the  other;  and  perhaps  some  significance 
should  be  given  to  the  fact  that  the  other  causes  of  action  are  plainly 
upon  contract,  and  that  the  pleader  could  scarcely  have  intended  to 
couple  inconsistent  causes  of  action  in  the  same  complaint. 

2.  The  count  also  alleges,  in  effect,  a  fraudulent  purchase;  an  intent 
not  to  pay  when  the  purchase  was  made ;  and  a  design  then  formed  to 
cheat  the  plaintiffs  out  of  the  value  of  the  goods.  If  such  an  intent  is 
established  by  sufficient  evidence,  it  will  justify  a  rescission  of  the 
contract,  and  would  have  authorized  an  action  of  replevin,  or  of 
trover,  for  the  goods.  Gary  v.  Hotailing,  1  Hill,  311 ;  Ash  v.  Putnam, 
id.  302;  Root  v.  French,  13  Wend.  570. 

3.  As  the  plaintiffs  had  received  nothing  from  the  defendant  on_tlie 
purchase,  except  a  worthless  verbal  promise,  there  was  not hing  which 
th£yLlverc"l5ound  to  f efii'rn"  as  a  condition  precedent  to  the  right  to 
recover.  If  they  had  received  a  note,  or  goods,  or  part  payment  in 
money,  they  would  probably  have  been  obliged  promptly  on  discovery 
of  the  fraud  to  restore  everything  which  they  had  received  under  the 
repudiated  contract.  Masson  v.  Bovet,  1  Denio,  G9 ;  Boughton  i'. 
Bruce,  20  Wend.  31;  Wheaton  v.  Baker,  U  Barb.  591.  But  I  do  not 
see  what  they  could  possibly  do  in  this  case  previous  to  bringing  the 
action,  to  manifest  their  intent  to  rescind,  unless  it  was  to  give  notice 
to  the  defendant.  I  think  that  was  not  necessar}'.  If  the  action  had 
been  in  tort,  and  the  original  purchase  fraudulent,  and  the  possession 
of  the  defendant  consequently  wrongful,  an  action  of  replevin  or  of 
tort  would  have  lain,  without  any  demand  or  notice.  Colville  v.  Besly, 
2  Den.  139  ;  Hawkins  v.  Appleby,  2  Sandf.  121 ;  Ash  v.  Putnam,  1  Hill, 
302.  x4.nd  it  is  difficult  to  see  why  it  should  any  more  be  required 
simply  because,  not  the  facts,  but  the  form  of  action  is  changed.  The 
defendant  cannot  complain,  because  he  is  supposed  to  know  that  his 
fraud  avoids  the  express  contract,  and  makes  him,  by  implication  of 
law,  liable  to  pay  immediately  upon  delivery  of  the  goods.  See  also 
Des  Arts  v.  Leggett,  IG  X.  Y."Eep.  582. 

1.  Xor  do  I  see  how,  after  the  repeated  adjudications  of  this  court 
on  the  question,  it  is  possible  to  say  that  the  plaintiffs,  on  repudiating 
the  contract  for  the  fraud,  had  not  their  election  between  contract  and 
tort,  as  to  the  fonn  of  action.  It  is  a  question  of  form  and  not  of 
substance.  The  adoption  of  the  ex  contractu  form  of  action  is  in  every 
respect  more  favorable  to  the  defendant.     It  prevents  a  preliminary 


124  ROTH    V.    PALMER.  [bOOK    II. 

arrest;  it  allows  a  set-off;  it  defeats  final  process  against  the  body. 
Our  courts  hold  that  he  shall  not  be  permitted  to  take  advantage  of 
his  own  wrong  to  bet  up  a  formal  objection  against  the  plaintiff's 
recovery.  Originally,  and  particularly  in  the  English  courts,  and  in 
Massachusetts,  a  distinction  was  attempted  to  be  established  as  to  the 
cases  in  which  the  plaintiff  should  be  allowed  his  election,  and  to  con- 
fine it  to  cases  where  the  fraudulent  purchaser  had  parted  with  the 
goods  and  received  money  on  his  sale  of  the  same,  which  the  courts 
allowed  the  plaintiffs  to  treat  as  money  had  and  received  to  the  plain- 
tiff's use.  Bennett  v.  Francis,  2  Bos.  &  Pull.  550,  555 ;  Jones  v.  Hoar, 
5  Pick.  285. 

But  the  cases  in  our  own  courts  recognize  no  such  distinction. 
They  seem  to  allow  it  to  be  done  in  all  cases  where  the  plaintiff  would 
have  been  allowed  to  pursue  his  remedy  in  tort^andTThe  decisions"  in 
fFis  court  have  been  too  numerous  and  too  uniform  to  allow  us  now 
to  set  up  any  distinction  or  limitation,  even  if  it  were  desirable  on 
principle.  Putnam  v.  Wise,  1  Hill,  234  and  note;  Cummings  v. 
Vorce,  3  id.  283  and  note ;  Berly  v.  Taylor,  5  id.  577 ;  Brownell  v. 
Flagler,  5  id.  282;  Baker  v.  Robbins,  2  Denio,  136;  Osborn  v.  Bell, 
5  id.  370;  Camp  v.  Pulver,  5  Barb.  91;  Hinds  v.  Tweddle,  7  Howard, 
278;  Butts  v.  Collins,  13  Wend.  154.  See  also  Lightly  v.  Clouston, 
1  Taunt.  113;  Hill  v.  Jerrott,  3  id.  274;  Young  v.  Marshall,  8  Bing. 
43.  There  is  scarcely  a  case  in  this  state  which  holds  a  contrary 
doctrine.  The  only  one  that  has  been  presented  to  my  notice  in 
conflict  with  these  is  that  of  Moffatt  v.  Wood  &  Fry,  appended  to  the 
defendant's  points  but  not  reported.  I  think  we  must  regard  this  last 
case  as  a  departure  from  the  line  of  authority  established  by  our  own 
courts,  and  therefore  not  to  be  follow^ed.  The  case  of  Moffatt  v.  Wood 
went  up  to  the  Court  of  Appeals  and  was  affirmed.  I  have  not  had 
access  to  the  opinions  pronounced  upon  such  affirmance,  but  the  note 
of  the  decision  contained  in  the  supplement  to  Clinton's  Digest,  page 
24,  would  lead  to  the  conclusion  that  the  affirmance  was  placed  upon  a 
different  ground,  as  it  well  might  be.  to  wit,  that  there  being  an 
express  valid  contract  in  the  case,  the  plaintiff  could  not  be  permitted 
to  repudiate  it,  nor  would  the  law  imply  a  different  one.  The  suit  was 
indebitatus  assumpsit  for  goods  sold,  and  the  goods  received  by  the 
.defendants  were  received  upon  a  contract  to  sell  them  on  commission. 
There  was  an  alleged  subsequent  fraudulent  conversion  of  the  goods; 
and  this  fraud,  under  the  authorities,  justified  the  plaintiffs  in  disre- 
garding the  sale  made  by  the  defendants  to  other  parties,  which  was  in 
effect  a  fraudulent  conversion,  but  not  in  disaffirming  the  original 
contract,  Avhich  was  subject  to  no  imputation  of  fraud.  There  is 
nothing  in  the  case  to  show  that  an  action  for  a  breach  of  the  contract 
to  sell  on  commission,  if  a  breach  of  that  contract  had  been  prosecuted 
for  and  proved,  would  not  have  been  sustained. 

5.  The  remaining  question  is,  what  is  the  effect  of  a  waiver  of  the 


CHAP.    I.]  ROTH    V.    PALMER.  135 

tort?  DoQS  it  restore  the  ex])ress  contract  which  has  been  repudiated 
for^he  fraud ;  or  dpes-lLleajrathe  parties  iiLilie_jame  concHfroh  asit  no 
ex£ress  contract  had  been  luiidiv  in^^nph  rolntimis  as  rpsultTTy  impli- 
cation  of  law,  from  the  delivery  of^lhe_goods  by  the  plaintiffs,  and 
their  possession  by  the  defendant?  On  this  subject  the  decisions  are 
conflicting,  but  I  think  the  weight  of  authority,  as  well  as  the  true 
and  logical  effect  of  the  various  acts  of  the  parties,  is  t^  jeave  the 
parties  to  stand  upon  the  rights  and  obligations  resulting  from  a 
delivery  and  possession  of  the  goods,  ^illson  v.  Force,  G  John.  110; 
Butts  V.  Collins,  13  Wend.  ISTTC^amp  v.  Pulver,  5  Barb.  91.  Indeed 
I  think  the  plaintiff  might  properly  and  preferably  have  prosecuted 
simply  for  goods  sold  and  delivered,  and  allowed  the  rest  of  the  trans- 
action to  come  out  as  a  matter  of  evidence.  If  he  had  done  so,  the 
order  of  proof  would  have  been  as  follows.  The  plaintiffs  would  have 
proved  that  they  delivered  goods  of  a  certain  value  to  the  defendant, 
and  that  the  latter  received  the  same  or  that  they  were  afterwards 
shown  to  be  in  his  possession.  From  this  evidence  the  law  would  imply 
a  promise  to  pay  the  value,  and  the  plaintiffs  might  properly  have 
rested.  The  defendant  would  then  have  shown  the  express  contract 
by  which  he  was  to  have  a  credit  of  six  months  on  the  purchase.  This 
would  have  established  a  defence.  The  plaintiffs  would  then  show  by 
the  declaration  of  the  defendant  antecedent  or  subsequent  to  the  pur- 
chase, or  by  other  proper  evidence,  that  the  defendant's  purchase  was 
fraudulent,  without  means  or  intent  to  pay  for  the  goods,  and  with 
the  design  to  defraud  the  plaintiff,  and  would  properly  claim  that  this 
justified  him  in  repudiating  the  contract.  On  this  evidence  the  plain- 
tiff would  rest  and  the  proof  would  be  closed.  The  only  remaining 
questions  would  be  questions  of  law ;  whether  this  state  of  facts  justified 
him  in  prosecuting  in  assumpsit,  and  whether  adopting  that  form  of 
action  would  reinstate  the  express  contract.  These  questions,  as 
already  suggested,  ought,  I  think,  to  be  decided  in  favor  of  the  plain- 
tiffs. Under  the  old  form  of  pleading,  they  might  readily  be  prose- 
cuted by  declaration,  plea  and  replication,  and  a  demurrer  to  the 
replication;  under  the  new  form  of  pleading  by  a  complaint  and 
answer :  the  answer  setting  up  the  express  contract,  and  the  remaining 
facts  being  presented  on  the  trial  by  denial  or  avoidance  of  the  facts 
set  up  in  the  answer.  The  plaintiffs  have  chosen,  perhaps  in  stricter 
analogy  to  the  theory  of  the  present  system  of  pleading,  to  present  all 
the  facts  in  their  complaint.  The  defendant  admits  those  facts  by  the 
demurrer,  and  presents  the  questions  of  law  arising  thereon  for  the 
adjudication  of  the  court.  The  result  is.  I  think,  that  the  plaintiffs 
must  have  judgment,  and  that  the  order  of  the  special  term  must  be 
affirmed  with  costs.^ 

'Accord:  Willson  v.  Foree  (1810)  G  Johns.  110;  Weigand  v.  Sichel  (1866) 
4  Abb.  Ap.  Dec.  592;  Baker  v.  Bobbins  (184G)  2  Den.  136,  but  see  Nichols  v. 
Michael   (1861)   23  N.  Y.  265;  Barrett  v.  Koella   (1857)   5  Biss.  40.— Ed. 


136  KIKKMAN  V.  PHILIPS.  [bOOK    II. 

ELIZABETH  KIEKMAX,  EX'X  v.  THOS.  PHILIPS'S  HEIKS. 

Supreme  Court  of  Tennessee,  18T2. 

[7  Heiskell,  222.] 

Nicholson,  C.  J.,  delivered  the  opinion  of  the  court. 

Elizabeth  Kirkman,  as  executrix,  on  the  18th  of  June,  1870,  filed  her 
attachment  bill  against  the  heirs  and  devisees  of  Thomas  Philips, 
citizens  of  Ohio,  to  recover  the  value  of  certain  machinery,  iron,  e^., 
alleged  to  have  been  tortiously  taken  in  1863  or  1864  by  one  Gibsoji, 
iSy  him  conveyed  to  Cincinnati,  Ohio,  and  there  delivered  to  one  Moore, 
and  by  Moore  sold  to  Thomas  Philips  and  his  son,  George  Philips. 

The  property  so  taken  and  converted  by  Gibson,  Moore,  and  Philips, 
is  alleged  to  have  been  worth  twelve  or  fifteen  thousand  dollars. 
Philips  has  died  testate,  and  his  devisees  are  made  defendants.  Lands 
in  Stewart  county  belonging  to  the  devisees  of  Philips  have  been 
attached,  and  the  bill  prays  that  they  may  be  sold,  and  the  proceeds 
applied  in  satisfaction  of  the  debt  due  the  complainant  for  the 
machinery,  iron,  etc.,  so  converted  by  Philips. 

The  bill  was  dismissed  by  the  Chancellor  upon  demurrer,  the  cause 
of  demurrer  being  that  the  recovery  sought  by  the  bill  being  for  a  tort, 
the^  same  was  barred  by  the  statute  of  limitation  of  three  years. 

The  allegations  of  the  bill  make  a  case  of  tort  in  the  taking  of  the 
machinery  and  iron,  and  a  conversion  by  Moore  and  Philips,  but  they 
show  clearly  that  complainant  is  seeking  to  recover  the  value  of  the 
property,  and  not  the  property  itself,  or  damages  for  the  tort_or  con- 
version.  The  value  so  sought  to  be  recovered  is  claimed  to  be  a  debt 
due  from  Philips  originally,  and  now  from  the  devisees  of  Philips, 
who  is  charged  with  the  last  conversion.  The  bill  is  therefore  main- 
tainable, the  tort  being^v  forc6  ot  the  language  of  the  bill  waived, 
an^Hhe  value  of  the  property  claimed_asa  debt.  Alsbrooks  v.  Hatha- 
way, 3  Sneed,  454;  Campbell  v.  Eeeves,  3  Head,  228;  Bennett  v.  Ken- 
nedy, ih.  675.  Although  there  are  many  authorities  in  other  States 
holding  that  it  is  only  after  property  has  been  converted  into  money 
that  the  tort  can  be  waived,  and  an  action  for  the  money  maintained, 
yet  in  our  own  State  the  doctrine  is  fully  settled,  that  in  a  case  of 
conversion  the  complainant  has  an  election  to  insist  either  upon  dam- 
ages for  the  conversion,  or  to  waive  these  and  sue  for  the  value  of  the 
property.  If  the  original  owner  of  the  property  elect  to  sue  for  the 
property,  or  for  damages  for  the  conversion,  the  action  will  be  barred 
by  the  statute  of  three  years :  Code,  sec.  2773.  But  if  the  party  elects 
to  sue  for  the  value  of  the  property,  the  action  will  be  barred  in  six 
years:  Code,  sec.  2775.  It  is  true,  as  argued,  that  a  wrongdoer jaav 
obtain- a  title  to  the  property  by  three  years'  adverse  possession,  and 


CHAP.    I.]  THE  WESTERN  ASSURANCE  CO.  V.  TOWLE.  127 

yet  be  liable  for  three  years  after  his  title^is  perfected  jtoL^pay  Hie 
original  owner  the  value  thereof.  This  is  a  necessary  consequence  of 
the  right  which  the  original  owner  has  to  elect  whether  he  will  sue 
for  property  or  its  value.  During  six  years  his  right  to  sue  for  the 
value  is  as  perfect  as  his  right  to  sue  for  the  property  within  three 
years.  Thisj-jght  is  not  interfered  with  by  the  proxisions  of  the  Code 
abolishing  the  distinctions  _in  the  forms  of  actions.  TliiL_statute_of 
lini'tations  applicable  to  the  cause  depends  upon  the  nature  and  char- 
ax?teF~oTThe  actioTi;  and  irofupon'its  form.  In  the  case" before  us, 
the  complainant  Iia¥l)Teetcd  to  waive  the  t^rt  and  to  sue  for  the  value 
of  the  property  converted,  and  in  so  doing  he  is  entitled  to  the  benefit 
of  the  six  years  statute.  It  does  not  appear  on  the  face  of  the  bill  that 
six  years  have  elapsed  from  the  time  of  the  purchase  of  the  property  by 
Philips  until  the  filing  of  the  bill. 

The  demurrer  was  therefore  erroneously  sustained. 

The  decree  sustaining  the  demurrer  and  dismissing  the  bill  is  re- 
versed with  costs,  and  the  cause  remanded  for  answer  and  further 
proceedings.^ 


THE  WESTERN  ASSURANCE  COMPANY  v.  TOWLE. 

Supreme  Court  of  Wisconsin,  1886. 

[65  Wisconsin,  247.] 

Taylor,  J.-  This  action  was  brought  by  the  insurance  company,.to_^ 
rornvor  from  tbe^ajjpellant  and  Swan  about  $1,000,  which  the  company 
liad^paid  to  them  i^ponjijolicy  of  fire  insurance  issued  by  said  com- 
pany  to  Towle  &  Swan  as  partners,  upon  an  alleged  loss  by  fire  of  prop- 
erty covered  by  said  policy.  The  complaint  charges  that  the  payment 
of  the  $1,000  was  procured  by  the  defendants  from  the  company  by 
makiiig,  false  an-dSjiuxlulcnt_proiif&,fl£1oa,s  and  by  false  swearing' oB~the 
pai't  of  the  defendants,  Towle  &  Swan,  as  to  the  extent  of  their  losses ; 
and  that,  relying  upon  such  false  statements  and  proofs  of  loss,  and 
not  knowing  of  their  falsity  at  the  time,  the  plaintiff  paid  the  $1,000 
to  the  defendants;  that  afterwards,  upon  ascertaining  the  falsity  of 
their  statements  and  proofs  of  loss,  and  that  they  did  not  in  fact 
sustain  the  losses  claimed  by  them,  and  that  there  was  in  fact  but  a 

^For  the  doctrine  that_J;he-tor:L-fea.aar  by^  exjiiration  of^tatiitory  period 
of  limitation  obtains  adverse  title  to  the  chattel  so  that  his  disposition  of  the 
property  thereafter  passes  ah  indefeasible  title,  see  Currier  r.  Stiulley  (1893) 
159  ^lass.  17,  '22,  and  authorities  there  cited. 

And  see  Mr.  Ames'  article  on  "'J'lie  Disseisin  of  Cliatlels"  in  3  Harv.  Law 
Rev.  321,  32-2.— Ed. 

■I'acts  omitted  and  only  that  ])ortion  of  the  opinion  is  printed  relating 
to  the  measure  of  the  recovery. — Ed. 


128  THE  WESTERN  ASSURANCE  CO.  V.  TOWLE.  [BOOK   II. 

very  small  portion  of  said  $1,000  due  to  them  for  losses  under  said 
policy,  the  plaintiff  demanded  of  said  defendants  the  $1,000  so  paid 
to  them  by  reason  of  said  false  and  untrue  proofs  of  loss  and  fraudu- 
lent representations;  that  the  defendants  have  neglected  and  refused 
to  pay  the  same.  Judgment  is  demanded  for  the  said  sum  of  $1,000 
with  interest  from  the  27th  day  of  September,  1881,  that  being 
the  date  of  the  payment  thereof  to  them  by  the  company.  The  first 
complaint  filed  in  the  action  was  demurred  to  as  not  stating  a  cause 
of  action;  and  thereupon  the  plaintiff  filed  an  amended  complaint, 
to  which  the  defendant  Towle  answered,  and  Swan  suffered  a  default. 
For  the  details  of  these  complaints  a  reference  must  be  had  to  the 
printed  case. 

After  the  summons  was  served,  and  before  any  complaint  in  the 
action  was  made  or  served  upon  the  defendants,  or  either  of  them,  the 
plaintiff  procured  to  be  made  a  sufficient  affidavit  for  a  writ  of 
attachment  against  the  property  of  the  defendants,  and  upon  such 
writ  the  property  of  the  defendant  Towle  was  attached.  Towle  there- 
upon, and  before  the  service  of  any  complaint  in  the  action,  gave  an 
undertaking,  as  authorized  by  sec.  2742,  R.  S.,  conditioned  as  therein 
required,  and  the  property  attached  was  released  from  said  attachment. 

When  the  action  was  called  for  trial,  and  a  jury  impaneled  to  try 
the  cause,  the  defendant  Toivle  moved  to  dismiss  the  amended  com- 
plaint and  strike  it  from  the  files,  for  the  reason  that  the  action  was 
begun  as  upon  a  contract  and  the  amended  complaint  sounds  in  tort. 
This  motion  was  overruled,  and  defendant  excepted.  The  defendant 
then  objected  to  the  reception  of  any  evidence  under  the  amended 
complaint,  on  the  ground  that  it  did  not  state  facts  sufficient  to 
constitute  a  cause  of  action.  This  objection  was  also  overruled,  and 
defendant  excepted.  After  trial  the  plaintiff  had  a  verdict  in  its 
favor  for  $1,205.36,  upon  which  judgment  was  rendered  against 
both  defendants.  Toivle  alone  appeals  from  the  judgment.  The 
verdict  was  the  amount  paid  by  the  company  to  the  defendants  on  the 
27th  of  September,  1881,  with  interest  from  that  date  to  the  date  of 
the  verdict,  and  no  more. 

This^ction  Jot  money  ■  had  and-ieceiyed  to  the  plaintiff's  use  is 
in^no  way  founded  upon  the  contract  of  insurance.  TrnTiifpon  th'e'tact 
that  false  and  fraudulent  representations  were  made  by  the  defend- 
ants in  order  to  induce  the  plaintiff  to  pay  the  same.  This  was  so 
expressly  held  in  Northwestern  Life  Ins.  Co.  v.  Elliott,  10  Ins.  Law  J. 
333 ;  S.  C.  5  Fed.  Eep.  225.  In  that  case  the  policy  upon  which 
the  money  had  been  paid  was  void  and  illegal  under  the  laws  of  Oregon. 
Still  the  company  had  paid  the  loss  on  the  false  claim  of  the  deatli 
of  the  party  whose  life  was  insured.  It  was  afterwards  ascertained 
that  the  person  whose  life  was  insured  was  not  dead,  and  the  com- 
pany thereupon  brought  an  action  to  recover  the  money  paid.  It  was 
insisted  on  the  trial  tliat  the  claim  for  the  money  was  founded  on 


CHAP.    I.]  THE  WESTERN  ASSURANCE  CO.  V.  TOWLE.  139 

the  void  and  illegal  contract  of  insurance,  and  for  that  reason  no 
recovery  could  be  had.  Judge  Deady,  in  deciding  the  case,  says  (5 
Fed.  Rep.  229,  230)  :  "True,  the  plaintiff  might,  at  common  law,  upon 
the  facts,  have  maintained  assumpsit  for  money  had  and  received  by 
the  defendant  to  plaintiff's  use ;  and  the  law,  in  the  interest  of  justice, 
and  by  way  of  promoting  the  remedy,  which  was  in  form  ex  contractu, 
would  have  implied  a  promise  on  the  part  of  the  defendant  to  pay. 
But  this  would  not  have  been  a  contract  arising  out  of  the  void  and 
illegal  one,  nor  in  any  respect  in  affirmance  of  its  validity,  but  only 
an  implication  or  fiction  of  law  that  upon  the  facts — the  plaintiff 
being  entitled  ex  a^quo  et  bono  to  recover  the  money  which  the 
defendant  had  wrongfully  obtained  from  it — he  promised  to  repay 
the  same."    Catts  v.  Phalen,  2  How.  376,  holds. the  same  doctrine. 

The  plaintiff  in  the  case  at  bar,  in  order  to  avail  itself  of  the  right 
to  sue  out  an  attachment  in  this  action,  ele_cted  to  waive  the  action 
for  the  wrong  committed  by  the  defendants,  and  bring  its  actioii_for 
money  had  and  received  to  its  use,  upon  the  im^Hied assumpsit  to 
repay  the  saine^^rn  this  action  it  recovers  the  money,  if  it  recovers 
at  all,  on  the  ground  that  it  has  paid  for  a  loss  which  did  not  in  fact 
occur.  If  the  loss  did  in  fact  occur  to  the  extent  of  the  payment  made, 
then  in  equity  and  good  conscience  the  money  ought  not  to  be  refunded, 
and  no  promise  to  refund  the  same  could  be  presumed  in  favor  of  the 
plaintiff;  and  if  there  was  a  loss,  though  not  as  great  as  the  money 
paid,  and  the  excess  of  payment  was  made  on  account  of  the  fraud 
of  defendants,  as  to  such  excess  there  would  arise  an  implied  promise 
on  the  part  of  the  defendants  to  refund  the  excess.  The  fraud  consists 
iil^falsely  overestimating  the  ^clainv-andr-demanding  and  -r^eeiving 
tbn_PY£Ps.ci  bpyond_the_actual  loss,  and  not  in  receiving  the  money 
which  was  justly  due  for  a  real  loss  sustained.  We  think,  therefore, 
that  this__action  for  money  had  and  received,  which  has  always  been 
considered  an  action  at~Ia\v  which  is  maintainable  upon  equitable 
principles,  can__only  avail  the  plaintiff  for  the  purposejof^ecovering 
wlmt^it  has  paid  in  exce5s"15rf!Te"Te'alrtoss,'"if  aiiyT^vhich  was  sustained 
by  the  defendants,  unless  the  jury  should  find  that  the  fire  which 
destroyed  the  property  was  caused,  either  directly  or  indirectly,  by  the 
wrongful  acts  of  the  defendants,  or  one  of  them.  If  the  latter  fact 
was  made  to  a]3pear,  there  would  be  no  loss  under  the  policy  which 
the  plaintiff  ought  to  pay.  If,  on  the  other  hand,  there  was  in  fact 
an  honest  loss  under  the  policy,  and  the  plaintiff  has  paid  more  than 
such  honest  loss  by  reason  of  the  fraud  of  defendants,  that  fact  does 
not  entitle  the  plaintiff  to  recover  back  in  this  action  the  amount  of 
money  which  is  covered  by  the  honest  loss. 

The  only  case  we  have  found  which  would  seem  to  question  the 
soundness  of  the  conclusions  we  have  arrived  at  upon  the  question 
of  the  amount  the  plaintiff  ought  to  recover  in  this  action,  if  there 
was  an  honest  loss,  is  Hartford  L.  S.  Ins.  Co.  v.  Matthews,  102  Mass. 


130  THE    WESTERN    ASSURANCE    CO.    V.    TOWLE.  [BOOK    II. 

221.  This  v/as,  however,  an  action  of  tort  to  recover  money  obtained 
by  false  representations,  upon  an  insurance  of  live-stock.  There  were- 
two  points  in  the  case:  first,  that  there  were  false  representations 
made  at  the  time  of  procuring  the  policy,  which  rendered  it  void; 
and  similar  false  representations  made  in  making  proofs  of  loss, 
upon  which  the  money  was  paid.  The  case  was,  however,  disposed  of 
in  favor  of  the  insured  and  against  the  company  upon  another  point 
not  involving  the  question  as  to  tlie  amount  which  the  company  ought 
to  recover  in  case  a  recovery  was  had  by  it. 

The  complaint  of  the  plaintiff  admits  that  some  of  the  property 
burned  was  covered  by  the  polic}^,  and  the  proofs  show  the  same  fact ; 
so  that  there  was  something  due  the  defendants  from  the  plaintiff 
upon  the  policy,  after  the  fire  took  place,  unless  they  wrongfully  caused 
the  fire ;  and  in  determining  the  amount  the  plaintiff  ought '  to 
recover,  the  amount  of  such  actual  loss  should  have  been  considered, 
if  they  were  entitled  to  recover  at  all  on  the  ground  of  fraudulent 
representations  as  to  the  amount  of  the  actual  loss  sustained.  The 
learned  circuit  judge  instructed  the  jury  that  if  they  found  from 
the  evidence  that  the  loss  of  defendants  was  small,  and  materially 
less  than  the  amount  of  the  policies  of  insurance,  and  that  the 
defendants  knew  that  fact  when  they  made  their  proofs  of  loss,  and 
intentionally  and  knowingly  stated  the  amount  of  the  loss  to  be 
matefially  greater  than  they  knew  it  to  be,  for  the  purpose  of  unjustly 
procuring  from  the  plaintiff  more  than  the  amount  of  the  loss,  and  the 
plaintiff  paid  the  loss  relying  upon  such  proofs  and  in  ignorance  of  its 
falsity,  then  the  jury  should  find  a  verdict  for  the  plaintiff  for  the  full 
sum  paid  by  it,  with  interest  from  the  date  of  payment.  This  instruc- 
tion was  excepted  to  by  the  defendant  Towle.  As  stated  above,  this  in- 
struction was  erroneous,  and  did  not  state  the  true  rule  for  establishing 
the  amount  the  plaintiff  should  recover  in  this  action  upon  that  branch 
of  the  case.  As  there  was  only  a  general  verdict  in  the  case,  we  cannot 
determine  that  the  verdict  was  not  based  upon  the  fact  that  there 
was  a  fraudulent  overvaluation  of  the  amount  of  the  losses  of  the 
defendants.  This  erroneous  charge  may  have  induced  the  jury  to 
render  a  verdict  for  the  whole  sum  paid  by  the  plaintiff,  notwithstand- 
ing they  found  in  favor  of  the  defendant  Towle  on  the  charge  that  the 
fire  was  wrongfully  set  by  the  defendants,  or  one  of  them. 

By  the  Court. — The  judgment  of  the  circuit  court  is  reversed,  and 
the  cause  remanded  for  a  new  trial. 

A  motion  for  a  rehearing  was  denied  February  23,  1886. 


CHAP.    I.]  ASHER   V.    WALLIS.  131 

ASHEE  V.  WALLIS. 

King's  Bench,  1708. 

[11  Modern  Reports,  146.^] 

A 31  AX  haying  a  wifn  in  England  goes  to  Jamaica,  and  there  marries 
a  rich  woman,  and  lets  her  hinds,  reserving  rent  to  himself,  and 
receh'es  the-same  divers  years ;  hut  after  some  time,  they  both  coming 
into  England,  shg_j)erceived  that  he  had  another  wife  living:  and 
thereupon  brings  an  indebitatus  assumpsit  against  him  for  the  said 
rentSj^jis  so  much  money  received  t)y  him  todier— use. 

At  the  trial  at  Guildhall,  London,  this  point  was  saved  to  be 
argued  by  Counsel,  Whether  an  indehitatus  assumpsit  would  lie  in 
this  case?  which  was  argued  this  Term. 

Dee^  the  Common  Serjeant,  said.  It  was  like  the  case  of  a  disseisee. 
who  could  not  maintain  an  indehitatus  assumpsit  against  the  disseisor, 
as  for  money  received  to  his  use;  and  in  this  case  there  was  another 
and  a  proper  action;  for  if  the  rents  were  received  with  her  consent, 
she  might  have  an  action  of  account  against  him  as  receiver;^  if  with- 
out her  assent,  trespass  lies. 

'The  principal  case  is  reported  more  briefly  under  the  name  of  Hasser  v. 
\Yallis  in  1  Salk.  28,  from  which  report  the  following  is  taken : 

"Upon  this  the  plaintiff,  discovering  the  former  marriage,  brought  an 
indebitatus  assumpsit  against  Wallis  for  so  much  money  received  to  her  use. 
And  after  verdict  on  non  assttmpsit,  it  was  objected,  that  Wallis  having  no 
right  to  receive,  the  tenant  was  not  discharged,  and  therefore  an  action  lay 
against  the  tenant,  who  has  his  remedy  over  against  Wallis.  But  the  court 
held  Wallis  was  visibly  a  husband,  and  the  tenant  discharged;  at  least  that 
the  recovery  against  Wallis  in  this_action  would  discharge  the  tenant,  for 
this  would  be  a  satisfaction  to  Hie  lessor." 

And  see  the  valuable  note  on  money  had  and  received  appended  to  this  case 
in  Evans'  Edition  of  Salkeld. 

On  the  effect  of  payment  operating  as  extinguishment  of  tenant's  rents,  that 
is  extinguishment  of  a  debt,  see  Dumois  v.  Still  (1895)  32  N.  Y.  Supp.  164; 
Sergeant  v.  Stryker  (1838)  1  Harr.  464,  in  which  the  principal  case  is  dis- 
cussed. 

Accord  in  Chancery:  Hele  v.  Stowel  (1670)  Ch.  Cas.  126;  In  re  Bowes 
(1887)  L.  R.  37  Ch.  D.  128.  See  also  Mercantile  Co-op.  Bank  v.  Frost  (1898) 
62  X.  J.  476. 

'In  Tottenham  v.  Bodingfield  (1573)  2  Leon.  25;  Ow.  35,  83;  Dal.  99, 
"the  case  was,  the  plaintiff  had  a  lease  of  a  parsonage,  and  the  defendant 
being  no  lessee,  nor  claiming  any  interest,  takes  the  tithes  being  set  forth, 
and  carries  them  away,  if  the  plaintiff  could  have  this  action  was  the  question." 
The  defendant  pleaded  he  was  never  his  "baily  for  to  render  account."  Tlie 
court  held  the  action  not  maintainable  because  the  action  of  an  accoiint 
presupposed  a  privity  "baseJ  upon  fiduciary  relationship  as  in  the  case  of  a 


132  ASHER    V.    WALLIS.  [bOOK   II. 

Eyre  also  for  the  defendant  said,  that  an  indebitatus  assumpsit  will 
not  lie,  but  where  money  is  due  on  some  contract;  therefore  where 
one  man  enters  on  another,  and  sells  his  goods,  &c.  he  who  has  the 
property  in  them  cannot  have  an  indebitatus  assumpsit  for  the  money 
received,  as  for  money  received  to  his  use;  but  must  have  his  action 
as  for  a  wrong  done,  viz.  trespass,  assize,  &c. 

Whitacre  for  the  plaintiff  said,  that  the  action  lies;  for  the 
plaintiff  was  consenting,  and  often  present  when  the  money  was 
paid;  that  where  deljt  will  lie,  an  indebitatus  assumpsit  will  also  lie^  in 
many  cases,  so  not  confined  to  a  particular  action.  But  here  it  cannot 
be  said,  that  the  defendant  was  a  wrong-doer,  because  it  was  done 
with  her  consent:  besides,  an  indebitatus  assumpsit  will  lie,  though 
there  was  no  contract;  as  for  the  profits  of  an  office  wrongfully 
received,  though  received  by  one  who  pretended  a  title.^ 

proctor,  a  bailiff  or  a  receiver,  whereas  the  defendant  was  a  tort  feasor  and 
"wrongs  are  always  done  without  privity."  It  was  admitted,  however,  that 
if  the  defendant  had  received  plaintiff's  rents,  then  upon  ratification,  the 
action  would  have  lain. — Ed. 

^See  Slade's  Case,  4.  Co.  92. 

^See  the  Case  of  the  City  of  London,  9.  Co.  .  See  also  Sir  William 
Saunderson  v.  Bignal,  2  Stra.  747;  Duppa  v.  Gerrard,  Salk.  78;  Stockhold  v. 
Collington,  Salk.  330. 

In  Arris  v.  Stuckley  (1678)  2  Mod.  2G0,  it  was  held  inler  alia  that  "If  a 
man  received  the  profits  of  an  office  on  pretence  of  title,  the  person  who  has  a 
right  to  the  profits  may  recover  them  hj  an  action  of  indebitatus  assumpsit,  as 
for  monies  had  and  received  to  his  use." 

In  the  course  of  the  argument  it  was  said  by  counsel:  "For  where  one  re- 
ceives my  rent,  I  may  charge  him  as  bailiff  or  receiver;  or  if*  any  one  receive 
my  money  without  my  order,  though  it  is  a  tort,  yet  an  indebitatus  will  lie, 
because  by  reason  of  the  money  the  law  creates  a  promise ;  and  the  action  is 
not  grounded  on  the  tort,  but  on  the  receipt  of  profits  in  this  case."  To  which 
the  court  answered:  "An  indebitatus  assumpsit  will  lie  for  rent  received  by 
one  who  pretends  a  title;  for  in  such  case  an  account  will  lie.  Wlipvever  the 
plaintiff  may- have  an  account,  an  indebitatus  wilj  He."  This  was  new  doctrine, 
but  was  expressly  followed  as  a  precedent  in  Howard  v.  Wood  (1079)  2  Lev. 
245,  T.  Jones,  126,  2  Show.  23,  although  the  court,  per  ScnoGGS,  C.  J.,  said: 
"If  this  were  now  an  original  case,  we  are  agi'eed  it  would  by  no  means  lie." 
As  reported  by  T.  Jones,  126,  128:  "Bvit  it  was  resolved  that  the  action  lay, 
■  ^  |or  it  is  an  expeditious  remedy,  and  facilitates  the  recovery  of  just  rights." 

^f^jjdfr Oji/A^J' As  late  as  1697,  Holt,  C.  J.,  was  loath  to  allow  indebitatus  for  fees,  but 
'  admitted  the  action  lay.  Constable's  Case  (1697)  Comb.  446:  Kessel  v.  Zeiser 
(1880)  102  N.  Y.  il4uiLc£itz.i^,_Bohronsnicyer  (1894)  149  111.  490;  Nichols  v. 
MacLean  (1886)  101  N.  Y.  526;  Fitzsinllfirons  v.  Brooklyn  (1886)  102  N.  Y. 
636  (one  wrongfully  deprived  of  an  office  is  entitled  to  full  salary,  although 
while  ousted  he  earned  other  money)  ;  U.  S.  v.  Addison  (1867)  6  Wall.  291; 
Crosbie  v.  Harley  (1833)  Ale.  &  N.  431;  contra,  Stuhr.  v.  Curran  (1882) 
44  N.  J.  L.  181    (but  see  C.  J.  Beasley's  admirable  dissenting  opinion). 

Wliile  therefore  it  is  established  by  authority  that  fees  of  an  office  may  be 


CHAP.    I.]  ASHER   V.    WALLIS.  133 

Darnel  also  for  the  plaintiff,  that  there  is  no  need  of  a  contract 
to  maintain  an  indehitatus  assumpsit;^  for  where  money  is  overpaid, 
this  action  will  lie  for  the  surplus.-  If  the  wife  lend  her  husband's 
money  to  J.  S.  the  husband  may  have  either  indehitatus  assumpsit 
(or  trover.  Q.).  If  rents  arc  received  by  false  toJcens/eithcT  account 
or  indehitatus  assumpsit  lies.^ 

And  BY  THE  WHOLE  CouRT  it  was  agreed,  that  an  Jji^ehitatus 
assumpsit  would  well  lie. 

But  Holt,  Chief  Justice,  said,  that  trover  would  not  lie  in  this  case, 
because  she  was  never  possessed  of  the  money  ;*  and  when  she  married 
the  defendant,  she  consented  that  he  should  manage  her  estate.  He 
cited  a  case,  where  if  money  be  over-paid,  either  deht  or  indebitatus 
assumpsit  lies.°  If  two  lay  a  wager,  and  stake  down  the  money,  the 
winner  shall  have  an  indehitatus  assumpsit  against  him  that  holds 
the  stakes,  as  for  money  received  to  his  use." 

And  the  judgment  was  given  for  the  plaintiff.'^ 

recovered  in  this  action,  it  is  equally  well  settled  that  only  the  fees  or  perquisites 
incident  to  the  office,  not  gratuities  may  be  recovered,  unless  such  fees  or 
perquisites  be  known  and  customary.  Boyter  v.  Dodsworth  (1796)  6  T.  R. 
(581.— Ed. 

'3  Mod.  260. 

^See  Moses  v.  Macfarlane,  2.  Burr.  1012;  Grove  v.  Dubois,  1.  Term  Rep.  112; 
Bize  V.  Dixon,  1.  Term  Rep.  281 ;  Robinson  v.  Eaton,  I.  Term  Rep.  59;  Clark  v. 
Shee,  Cowp.  197. 

•'See  Whip  v.  Thomas,  Bull.  N.  P.  130;  Clark  v.  Shee,  Cowp.  197. 

^Blackham's  Case,  Salk.  290. 

n.  Co. 

'See  Bovey  v.  Castlemain,  1  Ld.  Raym.  69;  Hard's  Case,  Salk.  23;  Jones  v. 
Randal,  Cowp.  37. — Reporter's  note. 

'See  Mayor  v.  Saunders  (1832)  3  B.  &  A.  411,  for  the  case  of  stallage  or 
tolls.  If,  however,  the  defendant  claims  adverse  title. to  the  land  or  fund  in 
question  tlie  presumption  of  agency  is  overtlirown  and  a  recovery  in  assumjisit 
is  not  allowed,  as  in  Clarence  v.  Marshall  (1834)  2  C.  &  M.  495  (following  in 
this  respect  Tottenham  v.  Bedingfield  (1573)  Ow.  35,  83,  in  note  ante). 

See  also  Nolan  v.  Manton  ( 1884)  46  N.  J.  L.  231 ;  Brown  v.  Brown  (1886) 
40  Hun,  418;  Fowler  v.  Bowery  Savings  Bank  (1889)  113  N.  Y.  450;  Casey 
V.  Pilkington  (1903)  83  App.  Div.  (N.  Y.)  91,  93;  Butterworth  v.  Gould 
( 1869)  41  N.  Y.  450;  Foley  v.  Mutual  Life  Ins.  Co.  (1892)  18  N.  Y.  Supp.  615; 
Webb  V.  Meyers  (1892)  18  N.  Y.  Supp.  711;  Murphy  v.  Ball  (1862)  38  Barb. 
262.— Ed. 


134  EADES  V.  VANDEPUT.  [BOOK  II.  i 

CUETEIS  V.  BRIDGES. 

Teinity.     King's  Bench^  1697. 

[Comherhach,  450.] 

If  the  Master  of  one  Ship  takes  a  Servant  that  belongs  to  the 
Master  of  another  Ship,  whatsoever  Wages  he  receives  from  the  King 
upon  his  Account,  shall  be  to  the  Use  of  his  first  Master,  being  acquired 
by  the  Labour  and  Industry  of  his  Servant.^ 


BARBER  V.  DENNIS. 

Trinity.     Queen's  Bench,  1704. 

[1  Salkeld,  68.-] 

A  waterman's  widow  took  an  apprentice,  who  went  to  sea  and 
earned  two  tickets,  which  came  to  the  defendant's  hands.  The  widow 
brought  trover  for  the  tickets,  and  had  judgment;  for  what  the 
apprentice  gains,  he  gains  to  his  master ;  and  whether  legally  appren- 
tice or  not,  is  no  ways  material,  for  it  is  enough  if  he  be  so  de  facto. 


EADES  V.  VANDEPUT. 

Guildhall,  King's  Bench,  1785. 

[5  East,  39  a,  39.] 

This  was  an  action  against  the  captain  of  a  ship  of  war  by  the 
master  of  an  apprentice,  to  recover  wages  for  the  service  of  his  appren- 
tice, who,  having  been  impressed,  was  detained  on  board  the  Defend- 
ant's ship.  The  only  witness  to  charge  Captain  Vandeput  with  knowl- 
edge was  the  apprentice  boy  himself,  who  swore  that  after  he  had  been 
impressed  and  carried  on  board  the  ship  he  told  the  Defendant,  the 
captain,  that  he  was  an  apprentice,  and  required  his  discharge,  which 
was  refused.  The  Plaintiff  having  recovered  a  verdict  before  Buller, 
J.,  at  the  sittings  after  the  last  term  at  Guildhall. 

^In  the  earlier  ease,  Anonymous  (IROo)  Skin.  579,  Holt,  C.  J.,  held  that 
an  action  on  the  ease  for  money  received  by  the  defendant  lay  under  like 
circumstances. — Eu. 

'Likewise  reported  in  6  Mod.  G9,  where  the  opinion  is  ascribed  to  Holt, 
C.  J.— Ed. 


CHAP.    I.]  LIGHTLY   V.    CLOUSTOX.  13.J 

Erskine  mored  for  a  new  trial,  grounded  on  affidavits  of  Captains 
Vandeput  and  Ommaney  of  tlie  navy,  which  stated  that,  according  to 
the  custom  of  the  navy,  if  an  apprentice  be  pressed  he  must  send  his 
indentures  to  the  Admiralty,  or  bring  evidence  of  them  to  the  captain 
of  the  vessel  on  board  of  which  he  is  taken.  And  here  he  observed 
that  the  boy  had  never  shewn  his  indentures;  and  that  if  a  captain 
were  to  discharge  a  boy  on  his  bare  word  that  he  was  an  apprentice, 
every  boy  on  board  his  ship  when  he  was  tired  of  the  service  would 
make  that  excuse. 

The  Court,  however,  were  of  opinion  that  the  evidence  was  sufficient, 
and  that  the  captain  ought  to  have  made  inquiry  into  the  truth  of 
what  the  boy  said;  for  after  that  information  he  detained  him  at  his 
peril;  and  it  was  admitted  that  if  the  indentures  had  been  produced 
the  Defendant  would  have  been  bound  to  have  discharged  the  boy. 

Rule  refused. 


LIGHTLY  V.  CLOUSTOX. 

CoMMOx  Pleas,  1808. 

[1  Taunton,  113.] 

This  was  an  action  of  indebitatus  assumpsit  "for  work  and  labor 
performed  for  the  defendant  at  his  request,  by  one  Thomas  Sinclair, 
the  apprentice  of  the  plaintiff  legally  bound  to  him  by  indenture  for 
a  term  of  years,  at  the  time  of  the  work  and  labor  so  performed  existing 
and  unexpired,  and  to  the  profits  and  receipts  of  whose  work  and 
labor,  the  plaintiff  was,  as  the  master  of  the  said  apprentice,  by  law 
entitled."  The  defendant  seduced  the  apprentice  from  on  board  the 
plaintiff's  ship  in  Jamaica,  and  employed  him  as  a  mariner  to  assist 
in  navigating  his  own  ship  from  Port  Royal,  home.  The  cause  was 
tried  at  the  sittings  after  Trinity  term  last,  before  Maxsfield,  C.  J. 
The  jury  found  a  verdict  for  the  plaintiff,  subject  to  the  opinion  of 
the  court  on  the  following  objection,  namely,  that  the  plaintiff  ought 
to  have  declared  in  a  special  action  on  the  case,  and  that  indebitatus 
assumpsit  would  not  lie. 

Accordingly  Best,  Serjt.,  having  on  a  former  day  obtained  a  rule 
nisi  for  setting  aside  the  verdict  and  entering  a  nonsuit, 

Shepherd,  Serjt.,  now  showed  cause.  It  has  been  decided  that  this 
declaration  is  good,  in  the  case  of  Eades  v.  Vandeput,  5  East,  39, 
which  was  an  action  brought  expressly  for  the  wages  earned  by  the 
plaintiff's  apprentice,  who  had  been  improperly  impressed,  and  com- 
pelled to  serve  on  board  a  ship  of  war ;  and  the  court  there  held  that 
the  plaintiff  might  recover.  Barber  v.  Dennis,  1  Salk.  6S.  The 
widow  of  a  waterman  was  held  to  be  entitled  to  two  tickets  which  had 
been  earned  by  her  apprentice  during  his  service  at  sea.    In  Smith  v. 


136  LIGHTLY  V.  CLOUSTON.  [BOOK    II. 

Hodson,  4  T.  E.  217,  the  court  expressly  determined,  that  although 
trover  would  have  lain  for  the  goods,  yet  the  assignees  might  affirm 
the  fraudulent  contract  of  the  bankrupt,  and  recover  the  price  as  upon 
a  sale  made  by  themselves. 

Best,  Serjt.,  contra.  The  case  of  Eades  v.  Vandeput,  as  it  is  now 
stated,  cannot  be  law.  An  action  might  perhaps  have  been  maintained 
in  that  case  to  recover  the  wages  in  the  shape  of  damages  for  the  tort ; 
but  all  the  work  and  labor  which  the  apprentice  there  did  must  have 
been  done  for  the  king;  since  even  the  services  of  such  servants  as  are 
allowed  to  the  captain  of  a  king's  ship  are  wholly  gratuitous  to  him. 
And  if  the  apprentice  worked  for  the  king,  that  action  could  not  be 
maintained  against  the  captain.  Macbeath  v.  Haldimand.  1  T.  K. 
172.  Barber  v.  Dennis  was  a  case  of  trover,  which  can  furnish  no 
authority  for  this  form  of  action,  and  it  is  of  the  less  weight  because 
one  point  which  is  there  reported  cannot  be  law,  namely,  that  it  is 
immaterial  whether  the  person  who  performed  the  service  was  legally 
an  apprentice  or  not.  The  analogy  drawn  from  that  class  of  cases, 
in  which  goods  have  been  tortiously  taken  and  sold,  and  the  plaintiffs 
have  been  permitted  to  waive  the  trespass  and  sue  for  the  proceeds 
of  the  sale,  as  money  had  and  received  to  their  use,  is  not  applicable 
here.  It  is  of  pernicious  tendency  more  largely  to  extend  this  form 
of  action,  in  which  the  defendant  is  not  apprised  by  the  declaration 
of  the  nature  of  the  claim  that  is  made  on  him.  It  is  necessary  to 
preserve  the  distinction  between  causes  of  action  which  arise  ex  delicto, 
and  those  which  arise  ex  contractu^  or  there  would  be  no  limits  to  the 
perversion  that  would  ensue.  A  cause  was  tried  before  Eyre,  C.  J., 
in  which  the  plaintiff  declared  in  assumpsit,  that  the  defendant  under- 
took not  to  beat  him  in  a  voyage  to  the  East  Indies.  Eyre,  C.  J., 
held  he  could  not  recover. 

Mansfield,  C.  J.  It  is  difficult  upon  principle  to  distinguish  this 
case  from  those  that  have  arisen  on  bankruptcies  and  executions,  and  in 
which  it  has  been  held  that  trover  may  be  converted  into  an  action  for 
money  had  and  received,  to  recover  the  sum  produced  by  the  sale  of 
the  goods.  I  should  much  doubt  the  case  of  Smith  v.  Hodson,  but  that 
I  remember  a  case  so  long  back  as  the  time  of  Lord  Chief  Justice  Eyre 
in  the  reign  of  George  the  Second,  in  which  the  same  thing  was  held. 
I  should  have  thought  it  better  for  the  law  to  have  kept  its  course; 
but  it  has  now  been  long  settled,  that  in  cases  of  sale,  if  the  plaintiff 
chooses  to  sue  for  the  produce  of  that  sale,  he  may  do  it;  and  the 
practice  is  beneficial  to  the  defendant,  because  a  jury  may  give  in  dam- 
ages for  the  tort  a  much  greater  sum  than  the  value  of  the  goods. 
In  the  present  case  the  defendant  wrongfully  acquires  the  labor  of 
the  apprentice;  and  the  master  may  bring  his  action  for  the  seduction. 
But  he  may  also  waive  his  right  to  recover  damages  for  the  tort,  and 
may  say  that  he  is  entitled  to  the  labor  of  his  apprentice;  that  ho  is 
consequently  entitled  to  an  equivalent  for  tliat  labor,  which  has  been 


CHAP.    I.]  HITCIIIN    [or    kitchen]    V.    CAMPBELL.  137 

bestowed  in  the  service  of  the  defendant.  It  is  not  competent  for  the 
defendant  to  answer,  that  he  obtained  that  labor,  not  b}'  contract  with 
the  master,  but  by  wrong;  and  that,  therefore,  he  will  not  pay  for  it. 
This  case  approaches  as  nearly  as  possible  to  the  case  where  goods  are 
sold,  and  the  money  has  found  its  way  into  the  pocket  of  the  defendant. 
Heath,  J.  So  long  back  as  the  time  of  Charles  the  Second,  it  was 
held  that  the  title  to  an  office,  under  an  adverse  possession,  might  be 
tried  in  an  action  for  the  fees  of  the  office  had  and  received ;  and  Holt^ 
C.  J.,  held  it  clear  law,  that  if  a  person  goes  and  receives  my  rents 
from  my  tenants,  I  may  bring  my  action  against  him  for  money  had 
and  received.  It  is  for  the  benefit  of  the  defendant  that  this  form  of 
action  should  be  allowed  to  prevail,  for  it  admits  of  a  set-off,  and 
deductions,  which  could  not  be  allowed  in  an  action  framed  on  the 
tort. 

Rule  discharged} 


2.    ELECTION  OF  REMEDIES. 


HITCHIN  [OR  KITCHEN]  v.  CAMPBELL. 

Common  Pleas,  1772. 

[2  William  Blachstone,  827.-] 

This  cause  proceeded  to  trial  in  the  sittings  after  Trinity  term, 
1771,  on  the  two  issues  joined  on  the  first  and  third  pleas,  when  this 
special  case  was  stated  for  the'  opinion  of  the  court :  That  Richard 
Anderson,  being  indebted  to  the  defendant  Campbell  in  £2000  for 
money  lent,  gave  two  bonds  and  judgment  for  the  same;  which  judg- 
ment was  entered  up.  And  on  the  9th  March,  1769,  a  writ  of  execu- 
tion was  sued  out  and  delivered  to  the  sheriff  of  Surrey  the  same 

^In  Foster  v.  Stewart  (1814)  .3  M.  &  S.  191 — a  case  involving  the  same 
principle — the  court  squarely  followed  Lightly  f.  Clouston,  supra,  so  that 
the  doctrine  of  waiver  may  be  regarded  as  thoroughly  established  in  this  class 
of    cases. 

See  the  following  early  cases:  Treswell  r.  Middleton  (1022)  Cro.  Jac.  653; 
Parish  v.  Parish  (1724)  1  Str.  582;  Co.  Lit.  17a  (Hargrave's  note).  Equity 
early  recognized  the  legal  right  of  the  master  to  the  services  of  the  appren- 
tice, and  therefore  refused  to  grant  relief  on  a  bill  by  the  apprentice  for  his 
earnings.     Meriton  v.  Hornsby    (1747)    1  Ves.  Sr.  48;  Hill  v.  Allen    (1747-8) 

1  id.  83. 

See  also,  James  v.  Le  Hoy  (1810)  (i  Johns.  274:  Stockett  r.  Watkins  (1830) 

2  G.  &  J.  ?12C),  343. 

So  in  the  case  of  an  infant.     Thompson  r.  Howard   (1875)    31  Mich.  309; 
Ilopf  r.  V.  S.  Bakins  To.   (1892)   27  N.  Y.  Supp.  217.— Ed. 
"Likewise  reported  in  3  Wils.  304. — Ed. 


138  HITCHIN    [or    kitchen]    V.    CAMPBELL,  [BOOK    II. 

day,  by  virtue  of  which  the  slieriff  tlie  same  day  levied  of  the  goods 
of  Anderson  by  making  a  bill  of  sale  thereof  to  the  defendant,  to  the 
value  of  £3155  6s.  5d.,  for  debt  and  costs.  On  the  9th  April,  1769, 
a  commission  of  bankrupt  was  awarded  against  Anderson,  and  the 
plaintiff  api)ointed  assignee,  who  in  Michaelmas  term,  1769,  brought 
trover  in  this  court  against  the  sheriff  of  Surrey  and  the  defendant 
for  the  goods  levied  under  the  execution.  On  trial  whereof  in  Hilary 
term,  1770,  there  was  found  a  verdict  for  the  defendant,  and  judg- 
ment accordingly.  In  Easter  term,  1770,  the  plaintiff  brought  an 
action  in  the  King's  Bench  against  the  defendant  for  money  had  and 
received  to  [his]  use  as  assignee,  and  recovered  £860  10s.,  as  mentioned 
in  the  plea,  upon  a  different  cause  of  action  from  the  present ;  namely, 
for  certain  notes  delivered  to  the  defendant  after  the  act  of  bank- 
ruptcy, which  was  proved  in  the  present  cause  to  have  been  committed 
in  February,  1769.  It  was  admitted  that  the  defendant  received  the 
money  levied  under  the  execution  before  the  action  in  the  King's 
Bench  was  brought.  And  this  action  being  brought  to  recover  back 
that  money,  Qu.  whether  under  these  circumstances  they  are  entitled 
to  recover? 

This  case  was  argued  in  last  Hilary  term  by  Gh/n  for  the  plaintiff, 
and  Jephson  for  the  defendant;  and  again  in  Easter  term,  by  Davy 
for  the  plaintiff,  and  Burland  for  the  defendant. 

For  the  defendant  it  was  insisted,  1.  That  this  action  of  assumpsit 
would  not  lie,  the  cause  of  action  being  in  the  nature  of  a  tort,  and 
not  a  contract.  2.  That  the  plaintiff,  having  made  his  election  by 
bringing  trover  in  the  King's  Bench,  in  which  he  failed,  is  barred 
thereby  from  bringing  under  another  suit  for  the  same  cause  of  action. 

For  the  plaintiff  it  was  replied,  1.  That  general  use  and  modern 
resolutions  have  now  settled  this  point,  and  it  is  not  to  be  disturbed. 
2.  That  the  plaintiff,  not  having  had  the  fruit  of  his  remedy  in  the 
King's  Bench,  shall  not  be  precluded  by  it. 

And  now,  in  this  term,  De  GT?Ey,  C.  J.,  delivered  the  opinion  of 
himself,  Gould,  Blackstone,  and  Wares,  JJ.  The  legal  effect  of  an 
act  of  bankruptcy  committed  by  a  trader  is  to  put  it  in  the  power 
of  the  commissioners,  by  relation,  to  divest  the  property  of  the  bank- 
rupt from  that  time,  in  case  a  commission  be  afterwards  issued.  This 
relation  takes  place  in  every  instance  but  three,  excepted  by  statutes 
1  Jac.  1,  21  Jac.  1,  and  19  Geo.  2,  c.  32.  Executions  are  not  among 
these  excepted  cases,  but  are  expressly  declared  void  by  the  statute 
21  Jac.  1 ;  tlie  commission  being  in  the  nature  of  an  execution  for 
the  whole  body  of  the  creditors.  By  the  old  acts  of  Hon.  8  and  Elix.. 
commissioners  had  a  power  of  acting  themselves  in  recovering  the 
bankrupt's  effects.  Afterwards  it  became  the  practice  to  assign,  wliich 
is  allowed  by  1  Jac.  1,  c.  15.  It  was  not  till  the  5  Anne  that  assignees 
wore  directed  to  be  chosen,  which  was  revived  by  5  Geo.  1.  Yet,  not- 
withstanding this  transfer  of  the  property  by  relation,  the  sheriff  is 


CHAP.    I.]  IIITCIIIX    [or   KITCHEX]    r.    CAMPBELL.  139 

certainly  no  trespasser  by  taking  the  goods  in  execution  after  the  act 
of  bankruptcy,  and  before  the  commission  issued.  So  ruled  in  Letch- 
mere  V.  Thorowgood,  in  Comb,  and  Show.,  Comb.  123;  1  Show.  12; 
3  Mod.  236;  and  in  Cooper  v.  Chitty,  in  Burrow,  20.  But  by  selling, 
the  sheriff  converts  the  goods ;  and  then  trover  is  maintainable  against 
the  sheriff,  or  his  vendee,  or  the  plaintiff  in  the  original  action.  But 
a  question  was  made  in  this  cause,  whether  indebitatus  assumpsit 
would  lie  against  the  defendant  for  the  money  arising  from  the  goods 
thus  taken  in  execution,  seeing  that  if  the  debt  was  illegally  levied  it 
was  a  tort,  and  if  the  tort  be  waived  the  whole  is  waived;  for  you 
cannot  affirm  one  part  of  a  transaction  and  disaffirm  the  rest.  Wilson 
V.  Poulter,  2  Stra.  859.  It  is  true,  this  matter  was  considered  formerly 
in  that  light,  as  in  Philips  v.  Tompson,  3  Lev.  191,  and  Holt,  95, 
12  Mod.  324.  And  in  Billon  v.  Hyde  (well  reported,  1  Ves.  326), 
Lord  Hardwicke  said  that  this  action  was  never  allowed  by  Lord 
Parker,  Lord  Eaymoxd,  or  himself,  but  that  the  practice  had  been 
since  altered.  And  practice  has  certainly  much  extended  this  action 
of  assumpsit  as  a  very  useful  and  general  remedy.  The  same  prin- 
ciple which  supports  this  action  against  one  who  receives  money  from 
the  bankrupt  himself  will  support  it  against  another  who  receives  it 
under  the  bankrupt.  In  both  cases  it  is  the  property  of  the  assignees ; 
and  though  while  this  action  was  in  its  infancy  (2  John.  126;  2  Lev. 
2-15)  the  courts  endeavored  to  find  technical  arguments  to  support 
it,  as  by  a  notion  of  privity,  etc.,  yet  that  principle  is  too  narrow  to 
support  these  actions  in  general  to  the  extent  in  which  they  are 
admitted.  Besides,  if  it  were  necessary,  there  is  in  this  case  a  privity 
between  the  defendant  and  the  bankrupt,  the  judgment  being  volun- 
tarily given.  Another,  and  a  much  stronger  objection  taken,  was  that 
though  the  assignees  may  have  their  election  to  bring  either  an  action 
of  tort  or  contract,  yet  they  cannot  bring  both;  and  having  elected 
to  bring  trover,  the  judgment  in  that  bars  the  action  of  assumpsit. 
This  depends  upon  two  considerations:  1.  ^^Tiether  a  man's  having 
once  elected  to  proceed  upon  the  tort  bars  him  from  proceeding  upon 
the  contract.  2.  "Whether  his  proceeding  dowTi  to  judgment  does  not 
bar  him  from  trying  the  same  cause  of  action  again.  1.  As  to  the 
first,  cases  have  been  cited  to  show  that  where  there  are  two  different 
kinds  of  remedies,  real  and  personal,  or  otherwise  specificallv  dis- 
tinguished, a  man's  election  of  one  prevents  him  from  using  the  other. 
He  may  distrain,  or  bring  assize,  but  not  both  (Litt.  s.  588)  ;  may 
bring  writ  of  annuity,  or  distrain  (Litt.  s.  219)  ;  and  his  election  is 
determined,  even  though  he  should  not  recover  after  he  hath  counted 
thereon  (Co.  Litt.  145fl).  But  where  both  remedies  are  merely 
real  or  merely  personal,  there  the  election  is  not  determined  till  the 
judgment  on  the  merits.  For  a  nonsuit  on  an  action  of  account  is  no 
bar  to  an  action  of  debt.  Co.  Litt.  146  a.  And  so  must  Holt,  in 
12  Mod.  324,  be  understood  to  mean,  "that  if  they  bring  one  they 


140  HITCHIN    [ok   kitchen]    V.    CAMPBELL.  [BOOK    II. 

shall  not  afterwards  bring  the  other,"  i.e.,  if  the  first  be  brought  to  a 
due  conclusion.  2.  But  in  the  present  case  the  action  of  trover  went 
on  to  a  verdict  and  judgment,  and  appears  by  the  case  stated  to  have 
been  for  the  same  cause  of  action.  And  upon  this  it  is  that  the  opinion 
of  the  court  is  founded.  The  rule  of  law  is,  Nemo  debet  his  vexari 
pro  eadem  causa.^  And  in  Ferrers'  case  (6  Co.  7;  Cro.  Eliz.  668)  it 
is  held  that  where  one  is  barred  in  any  action,  real  or  personal,  by 
judgment  or  demurrer,  confession,  verdict,  etc.,  he  is  barred  as  to 
that,  or  the  like  action  of  the  like  nature  for  the  same  thing,  forever. 
In  personal  actions  the  bar  is  universal ;  upon  real  actions  he  may 
have  an  action  of  a  higher  nature.  But  a  bar  in  one  assize,  etc.,  is  a 
bar  in  every  other.  Here,  by  "actions  of  the  like  nature"  must  be 
meant  actions  in  a  similar  degree,  not  merely  those  which  have  a 
similitude  of  form.  All  personal  actions  are  of  the  same  degree; 
therefore  each  is  a  perpetual  bar.  5  Co.  61,  Sparry's  case,  gives  the 
history  of  this  rule,  and  shows  when  it  commenced,  its  progress,  and 
legal  distinctions.  There  are  many  exceptions  to  this  rule :  as,  where 
the  first  action  is  not  competent;  where  the  plaintiff  has  mistaken  his 
character,  and  sued  as  executor,  not  as  administrator;  or  where  the 
judgment  is  given  for  faults  in  the  declaration  or  pleadings.  1  Mod. 
207.  But  the  principal  consideration  is,  whether  it  be  precisely  the 
same  cause  of  action  in  both,  appearing  by  proper  averments  in  a  plea, 
or  by  proper  facts  stated  in  a  special  verdict  or  a  special  case.  One 
great  criterion  of  this  identity  is,  that  the  same  evidence  will  maintain 
both  the  actions.  Putt  v.  Royston,  2  Show.  211;  Eaym.  472;  3  Mod. 
1;  Pollexfen,  634;  Mortimer  v.  Wingate,  Moor,  463;  Bro.  Acton  on 
the  Case,  pp.  97,  105.  These  relate  to  the  whole  of  the  demand.  But 
the  same  reasoning  extends  to  part  of  it  only;  as  4  Co.  92  h,  Slade's 
Case ;  and  Pike  v.  Aldworth,  in  Scacch.,  T.  5  W.  &  M.,  and  Hil.  7  &  8 
W.  3.  In  the  present  case,  as  there  was  clearly  a  conversion  before 
the  action  of  trover,  the  only  question  could  be  on  the  property.  In 
this  second  action  of  assumpsit  there  arises  the  same  question  of  prop- 
erty. The  first  action  has  determined  the  goods  not  to  be  the 
assignee's.  He  shall  not  now  try  whether  the  money  produced  by  those 
goods  is  his  or  no.  On  the  state  of  the  case  therefore  now  found,  the 
court  think  the  former  action  a  bar. 

When  this  case  was  first  before  the  court  on  demurrer,  there  were 
not  sufficient  averments  to  support  the  plea  in  bar.  Though  the  goods 
were  averred  to  be  the  same,  it  did  not  appear  that  the  question  was 
the  same ;  and  therefore  trover  might  not  have  lain  for  the  goods  them- 
selves, though  indehUatiis  assumpsit  might  afterwards  lie  for  the 
value.  Nor  is  there  any  injustice  in  the  present  case.  The  money  is 
in  the  hands  of  a  hona  fide  creditor,  who  has  got  an  advantage  at  law, 

^On  this  point  see  an  article  by  Mr.  Ames  on  the  Disseisin  of  Chattels, 
3  Harv.  L.  R.  326-328.— Ed. 


CHAP.    I.]  WILBUR  V.   GILMOilE.  1-41 

by  his  diligence,  over  the  body  of  the  creditors;  and  he  has  a  right, 
in  conscience,  to  keep  it. 

Therefore,  per  tot.  cur.,      •  Judgment  for  the  defendant. 


WILBUR  V.  GILMORE. 

Supreme  Judicial  Court  of  Massachusetts,  1838. 

[21  Pickering,  250.] 

Trespass  quare  clausum.  The  action  was  submitted  to  referees, 
under  a  rule  of  court.  They  awarded  to  the  plaintiff  the  sum  of  $5, 
as  the  actual  value  of  wood  and  timber  cut  and  carried  away  by  the 
defendant,  and  submitted  to  the  determination  of  the  Court  the  legal 
questions  arising  in  the  case. 

The  trespass  was  committed  in  the  lifetime  of  the  plaintiff's  testator. 
In  the  year  1 835,  the  plaintiff  commenced  a  suit  against  the  defendant 
for  the  same  cause  of  action.  To  that  suit  there  was  a  general 
demurrer,  and  joinder  in  the  Court  of  Common  Pleas,  and  judgment 
was  there  rendered  that  the  declaration  was  bad  and  that  the  defend- 
ant recover  his  costs.  The  defendant  insisted  that  those  proceedings 
were  a  bar  to  the  present  action. 

The  present  action  was  commenced  by  the  executor  after  the  Revised 
Statutes  went  into  operation,  and  another  question  submitted  to  the 
Court  by  the  referees  was,  whether  it  could  be  legally  commenced  by 
the  executor. 

Morton,  J.,  delivered  the  opinion  of  the  Court,  Two  questions 
are  referred  to  the  Court  by  the  report  of  the  referees.  1.  Can  this 
action  be  maintained  by  the  executor?  2.  Was  it  barred  by  a  former 
judgment  between  the  parties  ?^ 

2.  The  former  judgment  was  rendered  on  a  general  demurrer  to 
the  declaration,  and  is  no  bar  to  this  action. 

The  general  rule  undoubtedly  is,  that  the  judgment  in  one  action 
shall  bar  all  other  suits  between  the  same  parties  and  for  the  same 
cause  of  action.  Interest  reipuhlicce  ut  sit  finis  litium.  But  this  rule 
is  limited  to  judgments  rendered  on  the  merits.  If  the  plaintiff  be 
nonsuit  for  want  of  proof,  or  because  his  allegata  and  probata  do  not 
agree,  or  for  anv  other  cause,  he  may  commence  another  action. 
1  Chitty  on  PI.  ("5th  ed.)  227;  Gould  on  PI.  478.  Even  a  judgment 
of  nonsuit  on  the  merits,  or  on  an  agreed  statement  of  facts,  has 
been  hoi  den  to  be  no  bar  to  another  action..  Knox  v.  Waldoborough. 
5  Greenl.  185  ;  Bridge  et  al.  v.  Sumner,  1  Pick.  371.  So  if  the  plaintiff 
mistake  the  form  of  his  action,  as  if  he  bring  trespass  instead  of 
trover,  and  his  Avrit  be  adjudged  bad  on  demurrer,  the  judgment  will 
not  bar  an  action  of  trover.    \  Chit.  PI.  (5th  ed.)  227;  Gould  on  PL 

'Only  the  opinion  of  the  court  on   the   second  question   is  given. — Ed. 


143  MARSH    V.    PIER.  [BOOK    II. 

4T8,  §  46.  So  if  the  plaintiff  mistake  his  cause  of  action  and  the 
defendant  demur  and  have  judgment,  this  will  not  preclude  the  plain- 
tiff from  commencing  a  fresh  action,  correctly  setting  forth  the  right 
cause.  So  also  if  the  declaration  be  demurred  to,  or  a  bad  plea  be 
pleaded  and  demurred  to,  and  a  judgment  be  rendered  against  the 
plaintiff  for  the  insufficiency  of  his  declaration,  it  will  not  estop  the 
plaintiff  from  bringing  another  action  to  enforce  the  same  right; 
because  the  case  as  stated  in  the  last  declaration  was  not  tried  in 
the  first.  In  all  these  cases,  if  the  defendant  plead  the  former 
judgment  in  bar,  the  plaintiff  may  reply  that  it  was  not  obtained  on. 
the  merits.  1  Chit.  PI.  (5th  ed.)  227;  Gould  on  PL  478,  §  45;  Vin. 
Abr.  Judgment  (Q.  4)  ;  Lampen.v.  Kedgewin,  1  Mod.  207.  In  this 
last  ease.  North,  C.  J.,  says,  "there  is  no  question  but  that  if  a  man 
mistakes  his  declaration  and  the  defendant  demurs,  the  plaintiff  may 
set  it  right  in  a  second  action." 

It  is  apparent  from  the  record,  that  the  former  judgment  between 
these  parties  was  rendered  upon  the  insufficiency  of  the  declaration  and 
not  upon  the  merits  of  the  case,  and  therefore  can  be  no  bar  to  the 
present  action. 

Award  of  referees  accepted. 


MAESH  V.  PIER. 

Supreme  Court  of  Pennsylvania,  1833. 

[4  Rawle,  273.] 

One  Pier  owned  the  brig  Sally  Barher,  of  which  one  Marshall 
was  master,  and  in  1828  the  brig  sailed  from  New  York  to  Tabasco 
with  a  cargo  of  copper.  On  arrival  at  the  port,  a  cargo  of  logwood 
was  put  on  board  on  account  of  plaintiff,  and  the  brig  proceeded  on 
the  return  voyage  to  New  York.  After  being  at  sea  three  or  four  days, 
she  became  leaky  and  unfit  to  continue  the  voyage,  whereupon  the 
brig  changed  her  course,  and  entered  New  Orleans,  where  she  was 
regularly  surveyed,  condemned  and  sold.  By  direction  of  the  master, 
the  logwood  in  question  was  sold  through  W.  Nott  &  Co.,  who  gave 
tlie  master  a  draft  for  the  proceeds.  The  logwood  was  thereafter 
shipped  to  Phihidelphia  and  sold  through  original  purchaser  to  Marsh, 
who  took  bona  fide  and  without  notice.  .  Pier  disaffirmed  the  sale 
at  New  Orleans,  but  ultimately,  in  1829,  brought  suit  against  Wm. 
Nott  &  Co.  in  a  New  York  court  for  the  proceeds  of  the  logwood, 
in  which  suit  the  defendants  Wm.  Nott  &  Co.  had  judgment. 

In   1832,   Pier  brought  an  action  of  replevin  against  Marsh  in 


CHAP.    I.]  MARSH   V.    PIER.  143 

the  District  Court  of  Philadelphia  for  the  logwood  in  question,  to 
which  Marsh  pleaded  "property."  From  judgment  in  favor  of  the 
plaintilf  in  this  suit  Marsh  aj)pealed.^ 

The  opinion  of  the  court  was  delivered  by  Kennedy,  J.^ 
From  this  exemplification  of  the  record  of  the  judgment  of  the 
Superior  Court  of  the  City  of  New  York,  it  is  manifest  that  the 
value  or  price  of  the  logwood  which  forms  the  subject-matter  of 
the  dispute  in  this  action,  was  a  part  of  the  claim  of  the  plaintiff 
below  in  his  suit  against  William  Nott  and  John  Parker  in  that 
court.  They  sold  the  logwood  to  Samuel  P.  Morgan  &  Co.,  who 
shipped  it  on  board  of  the  barque  Hercules  consigned  to  C.  Price  & 
Morgan  at  Philadelphia,  who  sold  it  again  to  the  plaintiff  in  error. 
Now,  as  the  sale  of  logwood  by  Nott  and  Parker  at  New 
Orleans,  when,  as  is  admitted  by  both  parties,  it  was  the  property 
of  Sylvester  Pier,  and  avowedly  sold  by  them  as  such,  are  facts 
alleged  and  admitted  on  both  sides  in  this  action,  it  necessarily 
follows,  that  on  the  trial  of  the  cause  in  the  Superior  Court  of 
the  City  of  New  York,  either  the  authority  of  Nott  and  Parker 
to  make  this  sale,  and  that  they  had  faithfully  accounted  to  Pier 
for  the  proceeds  thereof,  must  have  been  established  to  the  con- 
viction of  the  court  and  jury,  or  otherwise,  if  made  without  legal 
authority,  that  they  had  satisfied  Pier  for  his  claim  and  loss  of 
property  in  the  logwood,  in  some  way,  so  that  he  was  not  entitled 
to  recover  of  them  in  that  action.  And  it  appears  to  me,  that  being 
decided  against  Pier,  on  either  of  these  grounds,  he  was  thereby  pre- 
cluded from  the  further  maintenance  of  this  action.  In  short,  I  am 
unable  to  perceive  any  ground  upon  which  that  action  could  have 
been  determined,  as  it  appears  from  the  exemplification  of  the  record 
to  have  been,  that  would  not  have  made  it  a  bar  to  the  further 
prosecution  of  this  suit  by  him.  The  evidence  to  support  both 
actions  was  the  same;  that  being  so,  the  cause  of  action  must  be 
the  same,  notwithstanding  the  actions  are  grounded  on  different 
writs.  This  was  held  in  Kitchen  v.  Campbell,  3  Wils.  Eep.  308, 
to  be  the  test  by  which  we  are  to  ascertain  whether  a  final  de- 
termination in  a  former  action  is  a  bar  or  not  to  a  subsequent 
action ;  and  it  is  there  said,  that  this  principle  runs  through  all 
the  cases  in  the  books,  both  in  real  and  personal  actions.  It  was 
resolved  in  Ferrers'  Case,  6  Co.  7,  "That  when  one  is  barred  in 
any  action,  real  or  personal,  by  judgment  upon  demurrer,  con- 
fession, verdict,  &c.,  he  is  barred  as  to  that,  or  the  like  action  of 
the  like  nature  for  the  same  thing  forever,"  for  expedit  rcipuh- 
Jiccr  lit  sit  finis  Utium;  which  is  also  supported  by  another  maxim. 
nemo  debet  his  vexari,  si  constet  curies  quod  sit  pro  una  et  eadem 

*A  short  statement  of  facts  is  substituted  for  that  of  the  report. — Ed. 
'A  part  only  of  the  opinion  is  given. — Ed. 


144  MARSH    V.    PIER.  [book    II. 

causa.  Sparry's  Case,  5  Co.  61.  In  Slade's  Case,  4  Co.  946,  it 
was  held,  that  a  judgment  in  an  action  of  debt  was  a  bar  to  an 
action  of  assumpsit  brought  on  the  same  contract.  In  Bardwell 
V.  Kersey  et  al.,  3  Lev.  179,  it  was  decided  that  a  former  action 
of  trespass  by  the  plaintiff  against  the  defendants  was  a  bar  to 
a  subsequent  action  on  the  case  for  the  same  cause.  Also  in 
Kitchen  v.  Campbell,  3  Wils.  308,  309 ;  S.  C.  2  Bl.  Rep.  827,  it  was 
ruled,  that  a  judgment  rendered  in  favour  of  the  defendant  in  a 
former  action  of  trover,  was  a  bar  to  the  plaintiff's  recovery  in 
a  subsequent  action  of  assumpsit  for  money  had  and  received  for 
the  plaintiff's  use,  from  a  sale  made  of  the  same  goods  by  the 
defendant.  In  like  manner  a  judgment  rendered  for  the  defend- 
ant in  trespass  de  bonis  asportatis,  was  determined  to  be  a  bar 
to  the  plaintiff's  recovery  in  a  subsequent  action  of  assumpsit  to 
recover  the  money  received  by  the  defendant  as  the  price  of  the 
same  goods  upon  a  sale  made  of  them  by  him.  Eice  v.  King, 
7  Johns.  20.  The  principle  settled  by  these,  and  many  other  cases, 
is,  that  the  plaintiff  cannot  have  a  second  investigation  of  the 
same  original  matter  when  it  has  passed  once  in  rem  judicatam. 
And  this  is  in  conformity  to  the  rule  laid  down  and  deduced  by 
the  judges  from  the  cases  on  this  subject  in  the  Dutchess  of 
Kingston's  Case,  20  State  Trials,  535,  "that  the  judgment  of  a 
court  of  concurrent  jurisdiction  directly  upon  the  point,  is  as  a  plea, 
a  bar,  or  as  evidence  conclusive,  between  the  same  parties  upon  the 
same  matter  directly  in  question  in  another  court." 

From  the  same  cases,  as  well  as  others,  it  may  be  seen,  that 
the  plaintiff  may  frequently  at  his  election  bring  either  trespass, 
trover,  replevin,  detinue  or  assumpsit,  to  recover  compensation 
for  the  loss  of  his  goods.  Feltham  v.  Tyrrel,  Lofft's  Eep.  207, 
320;  Lamine  v.  Dorrell,  2  Ld.  Raym.  1216;  Lindon  v.  Hooper, 
Cowp.  419;  20  Vin.  Abr.  tit.  Trespass,  page  540,  and  the  cases 
there  referred  to.  And  if  the  plaintiff  elects  to  bring  an  action 
of  trespass  or  trover  against  the  defendant,  who  has  sold  his  goods 
without  authority,  and  obtains  a  judgment  covering  the  value  of  the 
goods,  the  right  of  property  in  them,  I  take  it,  from  the  weight 
of  the  English  authorities  on  this  subject,  is  thereby  changed  from 
the  plaintiff,  so  that  he  could  not  maintain  an  action  afterwards  for 
the  goods,  against  the  vendee  of  the  defendant.  Brown  v.  Wootton, 
Cro.  Jac.  73,  per  Fenner,  Justice,  "the  property  of  the  goods  is 
changed,"  page  74;  S.  C.  Yelv.  67,  68,  and  note  (1)  by  Metcalf; 
Moore,  762 ;  Adams  v.  Broughton,  2  Stran.  1078 ;  S.  C.  Andr.  18 ;  Bull. 
X.  P.  47 ;  1  Cromp.  Prac.  184.  Per  Lord  Hardwicke,  in  Smith  v. 
Gil)son,  Rep.  Temp.  Hard.  319.  "It  is  a  sale  of  the  thing  to 
the  defendant,  which  vests  the  property  in  him."  3  Starkie's 
Ev.  part  4,  page  1281.  So  judgment  for  the  plaintiff  in  replevin 
in  the  d&tinet  for  damages,  vests  the  property  of  the  goods  in  the 


CHAP.    I.]  MARSH   V.    PIER.  145 

defendant.  Moor  v.  Watts,  1  Ld.  Raym.  G14;  12  Mod.  428. 
In  Xew  York,  however,  it  is  held,  that  the  property  of  the  plain- 
tiff in  the  goods  in  such  cases,  is  not  changed,  until  the  defendant 
shall  have  paid,  or  satisfied  the  judgment,  in  conformity  to  the 
rule  solutio  pretii,  emptionis  loco  liabetur,  which  seems  to  be 
sanctioned  by  what  is  laid  down  in  Jenk.  cent  4,  case  88,  page 
189.  Curtis  v.  Groat,  G  Johnson,  1G8;  Osterhout  v.  Roberts, 
8  Cowen,  43.  But  in  Virginia,  in  Murrell  v.  Johnson's  Adm., 
1  Henning  and  Mun.  449,  the  court  seemed  to  think,  that  A, 
whose  slave  had  been  sold  without  his  authority,  by  B  to  C, 
and  by  C  delivered  to  D,  having  brought  an  action  of  detinue, 
and  obtained  a  judgment  in  it  against  C,  could  not  afterwards 
maintain  an  action  of  detinue  against  D  for  the  same  slave, 
notwithstanding  his  judgment  against  C  still  remained  unsatisfied. 
So  if  the  plaintiff  brings  an  action  of  assumpsit,  instead  of  trover 
or  trespass  against  the  defendant,  who  has  sold  his  goods  without 
authority,  as  he  may  do  according  to  many  of  the  foregoing  cases,  and 
recovers  a  judgment,  I  apprehend  that  he  cannot  afterwards  sustain 
an  action  of  any  kind  against  the  vendee  of  the  defendant,  or  any 
person  claiming  the  goods  under  him.  And  this  not  merely  for  the 
reason  assigned  in  the  cases  cited  above,  but  for  an  additional,  and 
perhaps  still  more  forcible  one,  which  is,  that  by  thus  claiming  the 
money  arising  from  the  sale  made  of  the  goods  by  the  defendant,  he 
thereby  affirms  it,  for  the  money  arising  from  the  sale  of  the  goods 
is  all  that  the  plaintiff  can  claim  and  recover  in  the  action  of  assumpsit, 
and  by  taking  a  judgment  for  it.  it  does  appear  to  me,  that  he  thereby 
ratifies  and  confirms  the  sale  made  of  the  goods,  and  he  shall  not 
afterwards  be  permitted  to  gainsay  it.  Omnis  ratihahitio  retrotrahitur 
et  mandato  seu  licenti(P  aequiparatnr.  Lamine  v.  Dorrell,  2  Ld.  Raym. 
1216;  Bennitt  v.  Francis,  4  Esp.  Rep.  28.  Accordingly,  in  Brewer  v. 
Sparrow,  7  B.  &  C.  310;  S.  C.  M.  &  R.  2,  it  was  held,  that  a  person 
having  once  affirmed  the  acts  of  another,  who  wrongfully  sold  his 
property,  cannot  afterwards  treat  him  as  a  wrongdoer,  and  maintain 
trover  against  him.  And  should  the  plaintiff  fail,  on  trial  of  the 
action  of  assumpsit,  and  have  a  verdict  and  judgment  given  against 
him,  still  he  would  be  precluded  thereby  from  maintaining  another 
action  for  the  same  goods,  involving  the  same  evidence,  and  in'  effect, 
the  same  cause  of  action,  for  the  question,  or  subject-matter  of  dis- 
pute, having  passed  once  in  rem  judicatam,,  he  shall  not  again  vex  the 
defendant  or  those  claiming  under  him  with  a  second  action.  Young  v. 
Black,  7  Cran.  567. 

Xeither  is  it  material  in  such  cases,  that  botli  actions  were  com- 
menced on  the  same  da}',  or  at  different  dates,  and  were  both  pending 
afterwards,  at  the  same  time,  and  the  action  last  brought,  tried  first, 
and  judgment  rendered  in  it;  still  the  plaintiff  will  be  bound  by  it, 
and  be  precluded  from  further  maintaining  the  action  first  entered. 


146  MARSH  V.  PIER.  [BOOK   II. 

and  so  vice  versa.  This  was  the  case  in  Garvin  v.  Dawson,  13  Serg.  & 
Eawle,  2-16,  where  the  second  action  between  the  parties  commenced 
about  one  month  after  the  first  was  tried,  and  a  judgment  rendered 
in  it  in  favour  of  the  defendant,  which  was  afterwards  held  to  be 
a  bar  to  the  plaintiff's  further  maintenance  of  his  first  action.  This 
is  according  to  the  rule,  nemo  his  vexari  dehet,  which  allows  to  every 
one  the  opportunity  of  having  his  complaint  fairly  investigated,  and 
fully  hoard  before  the  judicial  tribunals  of  the  state,  but  being  once 
decided  by  the  proper  court,  after  such  investigation  and  hearing,  the 
peace  and  quiet  of  the  community  require  that  there  should  be  an  end 
of  the  dispute.  If  we  disregard  this  rule  we  have  no  other,  and  every 
controversy  must  become  interminable. 

From  the  views  which  I  have  taken  of  this  part  of  the  case,  it 
appears  to  me,  that  the  exemplification  of  the  record  of  the  Superior 
Court  of  the  city  of  New  York,  was  not  only  pertinent  to  the  issue 
joined,  and  therefore  admissible,  but  would  have  been  conclusive  evi- 
dence against  the  plaintiff's  right  of  property  to  the  logwood,  had  it 
been  received,  unless  he  had  shown  that  the  logwood  for  which  he  made 
a  claim  in  that  action,  was  not  the  same  claimed  in  this,  or  that  he 
had  on  the  trial  of  that,  withdrawn  that  part  of  his  claim  which  con- 
sisted of  the  logwood.  The  defendant  below  in  this  action,  pleaded 
property  in  the  logwood,  and  the  judgment  of  the  Superior  Court 
of  the  city  of  New  York,  showing  that  the  plaintiff  had  been  divested 
of  his  right  to  it,  by  a  sale  made  thereof,  under  which  the  defendant 
below  in  this  action,  claims  to  derive  his  right,  established  greatly  the 
most  important  link  in  the  chain  of  his  title.  And  although  the  judg- 
ment of  the  Superior  Court  of  the  city  of  New  York  was  rendered 
during  the  pendency  of  this  action,  still  I  think  it  was  not  necessary 
to  plead  it,  in  order. to  make  it  admissible  evidence,  because  it  was,  in 
effect,  the  decision  of  a  competent  court  of  concurrent  jurisdiction, 
given  in  affirmance  of  the  sale  of  the  logwood,  mentioned  in  the 
record  of  the  judgment  made  by  the  defendants  therein  named,  before 
the  commencement  of  this  action,  under  which  the  defendant  here 
claims  a  right  to  the  logwood.  Neither  do  I  conceive  that  it  was 
necessary  to  plead  it,  in  order  to  make  it  conclusively  binding 
upon  the  jury  against  the  plaintiff  bolow;  for  if  it  was  properly 
admissible  under  the  plea  of  property,  of  which  I  entertain  no  doubt, 
as  it  went  directly  to  establish  the  validity  of  the  sale  of  the  logwood, 
under  which  the  defendant  below  claimed  it,  it  being  the  judgment 
of  a  competent  court,  must  be  considered  the  conclusion  or  sentence 
of  the  law  on  tlie  facts  of  the  case,  and  therefore  not  to  be  set  aside, 
reversed  or  disregarded,  by  either  court  or  jury  in  this  action.  This 
doctrine,  as  I  conceive,  is  not  inconsistent  with  the  rule  laid  down 
by  a  majority  of  this  court,  in  Kilheffer  v.  Herr,  17  Serg.  &  Rawle, 
322,  but  comes  within  the  qualification  there  mentioned,  but  wlierever 
the  party  is  not  bound  to  plead  specially  to  enable  him  to  give  the 


CHAP.   I.J  MARSH   V.   PIER.  147 

record  of  a  former  recovery  in  evidence,  it  will,  when  given,  in  evi- 
dence, although  not  pleaded,  be  conclusive  and  binding  upon  the  plain- 
tiff, the  court,  and  the  jury.  1  Phil.  Ev.  223,  224  (New  York,  1816). 
Where  a  subject  or  question  in  controversy  has  been  once  settled  by 
the  judgment  of  a  competent  tribunal,  it  never  ought  to  be  permitted 
to  be  made  the  ground  of  a  second  suit  between  the  same  parties,  or 
those  claiming  under  them,  as  long  as  the  Judgment  in  the  first  suit  re- 
mains unreversed.  The  peace  of  the  community  is  a  great  desideratum, 
and  nothing  ought  to  be  tolerated,  that  would  disturb  it  unnecessarily. 
Before  the  rendition  of  a  judgment,  the  court  is  presumed  to  be  made 
acquainted  by  one  or  the  other,  or  by  both  of  the  parties,  with  every- 
thing that  is  necessary  to  be  known,  in  order  to  procure  a  correct 
decision  upon  the  case;  so  that  the  judgment  of  the  court  not  being 
pronounced  until  after  it  has  been  so  informed,  must  be  taken  and 
considered  as  corresponding  and  answering  fully  to  the  claims  of 
justice.  It  is  therefore  altogether  inadmissible  to  say,  that  a  renewal 
of  the  contest  shall  or  ought  to  be  permitted,  because  the  first  decision 
was  not  just  or  right. 

The  propriety  of  those  decisions  which  have  admitted  a  judgment  in 
a  former  suit,  to  be  given  in  evidence  to  the  jury  on  the  trial  of  a 
second  suit  for  the  same  cause,  between  the  same  parties  or  those 
claiming  under  them,  but  at  the  same  time  have  held  that  the  jury 
Avere  not  absolutely  bound  by  such  judgment  because  it  was  not  pleaded, 
may  well  be  questioned.  The  maxim,  nemo  debet  his  vexari,  si  constet 
curice  quod  sit  pro  una  et  eadam  causa,  being  considered,  as  doubtless 
it  was,  established  for  the  protection  and  benefit  of  the  party,  that  he 
may  therefore  waive  it;  and  unquestionably,  so  far  as  he  is  individu- 
ally concerned,  there  can  be  no  rational  objection  to  his  doing  so.  But 
then  it  ought  to  be  recollected,  that  the  community  has  also  an  equal 
interest  and  concern  in  the  matter,  on  account  of  its  peace  and  quiet, 
which  ought  not  to  be  disturbed  at  the  will  and  pleasure  of  every 
individual,  in  order  to  gratify  vindictive  and  litigious  feelings.  Hence, 
it  would  seem  to  follow,  that  wherever  on  the  trial  of  a  cause,  from 
the  state  of  the  pleadings  in  it,  the  record  of  a  judgment  rendered  by 
a  competent  tribunal  upon  the  merits  of  a  former  action  for  the  same 
cause,  between  the  same  parties  or  those  claiming  under  them,  is 
properly  given  in  evidence  to  the  jiiry,  that  it  ought  to  be  considered 
conclusively  binding  on  both  court  and  jury,  and  to  preclude  all  further 
inquiry  in  the  cause;  otherwise  the  rule  or  maxim,  expedit  reipuhlicce 
tit  sit  finis  litium,  which  is  as  old  as  the  law  itself,  and  a  part  of  it, 
will  be  exploded  and  entirely  disregarded.  But  if  it  be  part  of  our  law, 
as  seems  to  be  admitted  by  all  that  it  is,  it  appears  to  me  that  the 
court  and  jury  are  clearly  bound  by  it,  and  not  at  liberty  to  find  against 
such  former  judgment.  A  contrary  doctrine,  as  it  seems  to  me,  sub- 
jects the  public  peace  and  quiet,  to  the  will  or  neglect  of  individuals, 
and  prefers  the  gratification  of  a  litigious  disposition  on  the  part  of 


148  MARSH   V.    PIER.  [BOOK    II. 

suitors,  to  the  preservation  of  the  public  tranquillity  and  happiness. 
The  result,  among  other  things,  would  be,  that  the  tribunals  of  the 
state,  would  be  bound  to  give  their  time  and  attention  to  the  trial  of 
new  actions,  for  the  same  causes,  tried  once  or  oftener,  in  former 
actions  between  the  same  parties  or  privies,  without  any  limitation, 
other  than  the  will  of  the  parties  litigant,  to  the  great  delay  and 
injury,  if  not  exclusion  occasionally  of  other  causes,  which  never 
have  passed  in  rem  judicatam.  The  effect  of  a  judgment  of  a  court 
having  jurisdiction  over  the  subject-matter  of  controversy  between 
the  parties,  even  as  an  estoppel,  is  very  different  from  an  estoppel 
arising  from  the  act  of  the  party  himself,  in  making  a  deed  of  inden- 
ture, &c.,  which  may,  or  may  not  be  enforced  at  the  election  of  the 
other  party ;  because,  whatever  the  parties  have  done  by  compact,  they 
may  undo  by  the  same  means.  But  a  judgment  of  a  proper  court, 
being  the  sentence  or  conclusion  of  the  law,  upon  the  facts  contained 
within  the  record,  puts  an  end  to  all  further  litigation  on  account  of 
the  same  matter,  and  becomes  the  law  of  the  case,  which  cannot  be 
changed  or  altered,  even  by  the  consent  of  the  parties,  and  is  not 
only  binding  upon  them,  but  upon  the  courts  and  juries  ever  after- 
wards, as  long  as  it  shall  remain  in  force  and  unreversed. 
Judgment  reversed,  and  a  venire  facias  de  novo  awarded.^ 

'A  considerable  diversity  exists  as  to  when  an  election  to  sue  in  tort  or 
contract  is  made.  If  the  judgment  obtained  in  one  form  of  action  has  bePH 
satisfied,  it  is  clear  tKe  electrdiT  has  been  made,  and  a  subsequent  recovery  in 
the  other  form  of  action  should  not  be  permitted.  Hawkins  v.  Hatton  (1818) 
1  Nott  &  Me.  318;  Hepburn  v.  Sewell  (1821)  5  Harris  &  J.  211;  Thomas  v. 
Rumsey  (1810)  6  Johns.  26;  Stone  v.  Dickinson  (1862)  5  Allen,  29;  Ware  v. 
Percival  (1872)  61  Me.  391;  Walker  v.  Fuller  (1874)  29  Ark.  448,  S.  C. 
10  Am.  St.  Rep.  479  (with  note  on  election).  See  also  Cooper  v.  Shepherd 
(1846)   3  M.  G.  &  S.  266. 

Aa  to  a  mere  judgment,  unsatisfied,_^  being  a  binding  election,  Shaw, 
C.  J.,  in  Norton  v.  Doherty  (1855)  3  Gray,  372,  says:  "When  a  plain- 
tiff elects  one  [remedy]  and  pursues  it  to  judgment,  such  judgment  is  a 
bar  to  another  action.  ...  In  all  cases  where  the  plaintiff  has  his  option, 
in  the  outset,  to  bring  tort  or  contract,  to  recover  damages  for  one  and 
the  same  injury,  upon  a  state  of  facts  which  will  support  either,  an  ad- 
judication in  one,  whichever  he  may  elect,  is,  upon  principle,  a  bar 
to  the  other."  Goodrich  v.  Yale  (1867)  97  Mass.  15;  Prince  r.  City  of 
Quincy  (1889)  128  111.  443;  Brown  v.  Bowen  (1856)  42  Me.  44:  Duncan  v. 
,Stokes  (1873)  47  Ga.  593;  Smith  v.  Way  (1864)  9  Allen,  472;  Walsh  v.  Canal 
Co.  (1882)  59  Md.  423;  Black,  Judgments,  §  729  and  cases  cited;  though  it  has 
been  held  that  a  judgment  on  demurrer  is  not  a  bar.  Wilbur  v.  Gilmore 
(1838)  ante;  White  v.  Waste  Corp.  (1901)  178  Mass.  20;  and  it  would  seem 
immaterial  whether  the  first  action  is  tort  or  assumpsit.  Rice  v.  King  (1810) 
7  Johns.  20;  Kitchen  v.  Campbell   (1772)   3  Wils.  304,  S.  C.  2  W.  Black.  827. 

I A  closely  allied  question  arises  here  as  to  whether  or  not  a  judgment,  in 
tort,  passes  title.     It  is  generally  understood  that  in  England  title  does  pass 


CHAP.    I.]  HUFFMAN    V.    HUGIILETT    &    PYATT.  149 

HUFFMAN  V.  HUGHLETT  &  PYATT. 

Supreme  Court  of  Tennessee,  1883. 

[11  Lea,  549.] 

Appeal  in  error  from  the  Circuit  Court  of  Scott  County. 

Cooper,  J.,  delivered  the  opinion  of  the  court. ^ 

On  March  12,  1881,  Hughlett  &  Pyatt  sued  out  an  original  attach- 
ment against  the  estate  of  H.  P.  Springer,  a  non-resident  of  the  State, 
the  affidaviLfmL-tlia, writ  stating  thatrSpringer  was  indebted  to  them  in 
the  sum  of  seventy  dollars  "due  by  account  for  black  walnut  lu"mber 
that  the  said  H.  P.  Springer  wrongfully  took  from  them,  and 
converted  to  his  own  use."  The  attachment  was  issued  and  levied, 
and  publication  made  requiring  the  said  Springer  to  appear  on  April 

by  the  judgment,  and  the  following  authorities  are  usually  cited  to  establish 
the~view.  Bishop  v.  Montague  (1600)  Cro.  Eliz.  824;  Brown  v.  Wootton 
(1605-6)  Yelv.  66,  S.  C.  Cro.  Jac.  73,  Moore,  762;  Adams  v.  Broughton  (1737) 
2  Stra.  1078,  S.  C.  Andrews,  18;  King  v.  Hoare  (1844)  13  M.  &  W.  494; 
Buekland  v.  Johnson  (1854)  15  C.  B.  145;  Brinsmead  v.  Harrison  (1872) 
L.  R.  7  C.  P.  547;  [but  see  Morton's  Case  (1584)  Cro.  Eliz.  30;  Ferrer  v. 
Arden  (1599)  Cro.  Eliz.  668;  Sir  John  Heydon's  Case  (1612-13)  11  Co.  5a; 
Brooke,  Judgments,  p.  98;  Cocke  v.  Jenner  (1703)  Hob.  619;  Corbet  v.  Barnes 
(1636)  Wm.  Jones,  377;  Shower,  arguendo,  in  Claxton  v.  Swift  (1684) 
2  Show.  441,  S.  C.  (1685)  id.  494;  Lord  Ellenborough's  opinion  in  Drake  v. 
Mitchell  (1803)  3  East,  251,  258.  And  see  also  the  opinions  of  Kent,  C.  J.,  in 
Livingston  v.  Bishop  (1806)  I  Johns.  290,  and  Hosmer,  C.  J.,  in  Sheldon  v. 
Kibbe  (1819)  3  Conn.  214]. 

In  America,  satisfaction  of  the  judgment  is  usually  considered  necessary 
to  pass  title.  Eovejoy  v.  Murray  (1865)  3  Wall.  1;  Livingston  v.  Bishop 
(1806)  1  Johns.  290;  Miller  v.  Hyde  (1894)  161  Mass.  472;  Atwater  v. 
Tupper  (1877)  45  Conn.  144;  Sheldon  v.  Kibbe  (1819)  3  Conn.  214; 
Sanderson  v.  Caldwell  (1826)  2  Aiken,  195;  Elliott  v.  Porter  (1837) 
5  Dana,  299, —  (in  all  of  which  cases  the  subject  is  carefully  considered)  ;  and 
see  also  Turner  v.  Brock  (1871)  6  Heisk.  50;  Osterhout  v.  Roberts  (1827) 
8  Cowen,  43  (and  note-case  in  Waterman's  edition)  ;  2  Kent's  Com.  388  and 
note;  1  Greenleaf,  Evidence,  §  533;  but  see,  contra,  Floyd  v.  Browne  (1829) 
1  Rawle,  121  (cf.,  the  court  apparently  attempting  to  limit  the  doctrine  of  this 
case,  Fox  v.  Northern  Liberties  (1841)  3  W.  k  S.  103,  but  later  reverting  to  the 
.first  doctrine,  Merrick's  Estate  (1842)  5  W.  &  S.  1,  17);  Rogers  v.  Moore 
(1838)  1  Rice,  60  (allowing  creditor  of  defendant  to  proceed  against  the  prop- 
erty after  judgment,  and  before  satisfaction)  ;  Norris  i;.  Beckley  ( 1818)  2  Jlill's 
Const.  228;  Bogan  v.  Wilburn  (1842)  1  Spears,  179;  and  see  Freeman.  Judg- 
ments, §  237.  Otlier_courj,s  have  held  that  though  the  judgment  does  not  vest 
title,  suing  out  execution  will,  Curtis  r.  Groat  (1810)  6  Johns.  KIS.  109,  even 
though  there~b?5~TiTr  satisfacTion.  White  v.  Philbrick  (1827)  5  Greenl.  147; 
Fleming  i;.  ^McDonald  (1875)  50  Ind.  278.  For  a  critical  survej'  of  the  ques- 
tion and  the  principles  involved,  see  "The  Disseisin  of  Chattels,"  by  James 

'Only  a  part  of  the  opinion  is  given. — Ed. 


150  HUFFMAN    V.    HUGHLETT    &    PYATT.  [BOOK   II, 

21,  1881,  before  the  justice  who  issued  the  writ,  for  a  hearing.  On 
April  31,  1881,  Hughlett  &  Pyatt,  upon  an  athdavit  that  Springer 
was  either  the  partner  or  agent  of  M.  J.  Huffman,  sued  out  a  summons 
against  H.  P.  Springer  and  M.  J.  Huffman  to  answer  them  in  an 
action  of  debt  in  a  sum  under  $100.  This  summons  was  issued  by 
the  same  justice  of  the  peace,  executed  upon  Huffman,  and  made 
returnable  before  the  justice  on  the  same  day.  The  plaintiffs  appealed 
from  the  judgment  rendered  by  the  justice.  In  the  circuit  court,  the 
case  was  tried  by  the  judge  without  a  jur}-,  who  rendered  a  judgment 
in  favor  of  the  plaintiffs  against  both  of  the  defendants  for  the  value 
of  the  lumber  sued  for.    Huffman  alone  appealed. 

The  bill  of  exceptions  shows  that  after  the  papers  in  the  case  were 
read,  the  plaintiffs  and  the  defendant  Huffman  introduced  oral  proof 
showing  the  following  facts,  viz. :  "Plaintiffs  were,  as  partners,  the 

Barr  Ames,  3  Harv.  Law  Rev.  23,  313,  317  (particularly  at  p.  326  et  seq.)  ; 
''Transfer  of  Personal  Property  by  Judgment,"  3  Am.  L.  Mag.  49;  an  article 
by  Mr.  Maitland  on  an  allied  topic,  "Seisin  of  Chattels,"  1  Law  Quarterly 
Rev.  324;  and  the  well-considered  opinions  in  Miller  v.  Hyde  (1894)  161  Mass. 
492. 1 

But  the  authorities  are  even  less  uniform  as  to  what  will  constitute  an 
election  before  judgment.  "If  he  [one  whose  goods  have  been  taken]  bring^ah 
action  for  money  had  alid  received,  this  is  a  conclusive  waiver  of  the  tort, 
and  if  he  bring  trover,  that  is  an  election  to  treat  the  matter  as  a  tort." 
Smith  V.  Baker  (1873)  L.  R.  8  C.  P.  350,  S.  C.  42  L.  J.  P.  155,  citing  Buck- 
land  V.  Johnson  (1854)  15  C.  B.  145,  S.  C.  23  L.  J.  N.  S.  C.  P.  204;  and  in 
Smith  V.  Hodson  (1791)  4  T.  R.  211,  S.  C.  Smith's  Leading  Cas.  (9th  ed.  Am. 
Notes)  1372,  and  notes,  Lord  Kenyo^  held  that  a  plaintiff,  by  bringing  an 
action  in  assumpsit  for  goods  fraudulently  assigned  by  a  bankrupt  to  the 
defendant,  had  affirmed  the  transaction  as  a  sale.  To  the  same  effect  Shaw, 
C.  J.,  in  Butler  v.  Hildreth  (1842)  5  Met.  49.  The  question  really_involves 
several  points: 

£irs*j_the  power  of  amending  pleadings,  either  as  a  matter,  of. ^  course, 
or  by  the  discretion  of  the  court.  Some  courts  refuse  any  amendment  that  will 
change  the  cause  of  action  from  one  ex  contractu  to  one  ex  delicto,  and  vice 
versa,  Supervisors  v.  Decker  (1874)  34  Wis.  378;  Stevenson  v.  Mudgett  (1839) 
10  N.  H.  338,  S.  C.  34  Am.  Dec.  155,  and  note;  People  v.  Circuit  Judge  (1865) 
13  Mich.  206;  but  generally  the  rule  is  not  so  strict.  Changes  have  been 
permitted  after  trial  begun  and  the  preliminary  evidence  given,  Culp  v. 
Steere  (1892)  47  Kan.  746,  on  the  theory  that  the  restrictions  as  to  amend- 
ment do  not  refer  to  the  form,  but  to  the  general  identity  of  the  transaction 
forming  the  cause  of  complaint.  Spice  v.  Steinruek  (1863)  14  Ohio  St.  213; 
and  New  York  permits  any  amendment  which  does  not  necessitate  the  issuance 
of  a  new  summons.  Brown  v.  Leigh  (1872)  12  Abb.  Prac.  N.  S.  193;  Hopf.  v. 
U.  S.  Baking  Co.  (1892)  21  N.  Y.  Supp.  589  (where,  after  verdict  for  the 
plaintiff  was  set  aside,  he  was  permitted  to  amend  a  complaint  which  alleged  a 
wrongful  harboring  of  his  son,  so  as  to  seek  recovery  for  the  services)  ;  and  see 
on  the  general  topic,  Pomeroy,  Remedies,  §  566,  and  cases  cited;  Bliss,  Code 
Pleading,  §  429,  and  authorities. 


CHAP.    I.]  HUFFMAN   V.   HUGHLETT   &   PTATT,  151 

owners  of  three  walnut  logs  in  New  Eiver  containing  2,000  feet,  and 
worth  seventy  dollars.  These  logs  floated  down  the  river  to  Eussell's 
mill,  and  were  then  taken  and  converted  by  the  defendant  Springer, 
and  sawed  into  lumber,  and  afterwards  sold  by  him  to  the  defendant 
without  authority  from  plaintiffs,  and  the  facts  were  so  found  by  the 
court.  The  court  adjudges  that  these  facts  constituted  a  trover  and 
conversion  of  said  property  by  each  of  said  defendants,  and  that  both 
of  them  were  liable  to  plaintiffs  for  the  value  thereof  by  reason  of  said 
facts ;  and  that  plaintiffs,  having  waived  the  tort,  and  sued  defendants 
for  the  value  of  said  lumber,  were  entitled  to  the  same." 

The  suit  was  commenced  by  foreign  attachment  against  Springer 
alone  for  the  value  of  the  lumber  in  controversy,  based  upon  the 
implied  assumpsit  arising  from  the  wrongful  conversion  of  the  prop- 
erty by  the  defendant.  The  suit  was  converted  into  a  joint  action 
against  Springer  and  Huffman  by  a  summons  based  upon  the  same 

SeconcV;/,  the  power  of  a  plaintiff  voluntarily  to  discontinue  one  cause 
of  action  and  begin  another  of  a  different  kind.  This  has  been  permitted. 
Cooper  r  Smith  (1896)  109  Mich.  458;  Equitable  Foundry  Co.  v.  Hersee 
(1884)  33  Hun,  169;  Peters  v.  Ballister  (1826)  3  Pick.  495  [where  the 
suit  was  discontinued  before  trial,  Smith  v.  Hodson,  supra,  being  before  the 
court.  Shaw,  C.  J.,  later  restricted  the  decision  to  cases  where  the  first 
action  was  entirely  misconceived.  This  view  was  affirmed  in  White  v.  New 
Bedford,  etc.,  Corp.  (1901)  178  Mass.  20].  The  principle  has  been  applied 
where  an  unauthorized  suit  in  assumpsit  has  been  brought  by  an  agent,  on  a 
sale  induced  by  fraud.  The  principals,  on  learning  of  it,  were  permitted  to 
discontinue  the  assumpsit  and  bring  replevin.  Lee  v.  Burnham  (1892) 
82  Wis.  209. 

Thirdly,  fqr_  a  Jbinding  election,  the  tw;o— ccmedie.s _  must  be  coexistent. 
While  a  man  having  an  election  must  elect  or  affirm  the  whole  transaction, 
Vjt  merely  that  which  is  for  his  benefit.  Smith  v.  Hodson,  supra,  2  Smith 
Lead.  Cas.  (9th  Am.  ed.)  1372  and  note,  yet  where  the  defendant  received 
goods  tortiously,  and  sold  part,  the  fact  that  for  the  part  sold,  the  plaintiff 
had  recovered  in  an  action  for  money  had  and  received,  was  no  bar  to  a 
subsequent  action  in  replevin  for  the  part  unsold.  Browning  i\  Bancroft 
(1844)  8  Met.  278;  and  see  Singer  v.  Schilling  (1889)  74  Wis.  369;  Kynaston 
V.  Crouch   (1845)   14  M.  &  W.  266;  Freeman,  Judgments.  §  238. 

Fourthly,  the  binding  effect  of  any  act  of  thej)laiiitiff  before  suif^brxiught. 
'If  tKe^pa*4y-eleeti^^g^^ras^6ne— whether  he  intended  it  or  not — £yi_uneqin vocal 
^ct,  i.  e.,  an  act  which  would  be  jiistifiable  if  he  had  elected  one  way,  and 
would  not  bo  justifiable  if  he  had  elected  the  other,  the  fact  of  his  having  done 
that  unequivocal  act  to  the  knowledge  of  the  persons  concerned  is  an  election,' 
per  Lord  Blackburn,  Scarf  v.  Jardine  (1882)  7  Ap.  Cas.  345,  361.  The  receipt 
of  proceeds  of  goods  tortiously  taken  is  such  an  act  of  election  and  bars  an 
action  in  tort,  Brewer  v.  Sparrow  (1827)  7  B.  &  C.  310,  tho\igh  a  mere  demand 
for  them  is  not,  Valpy  v.  Sanders  (1848)  5  C.  B.  886;  and  even  a  receipt  of 
part  of  them  is  not  in  all  cases  an  election.  Burn  v.  Morris  (1834)  2  Cr.  &  M. 
579;  but  see  Lythgoe  v.  Vernon  (1860)  5  H.  &  N.  180.  For  this  whole  doctrine 
consult  10  Law  Ouarterlv  Rev.  100. — Ed. 


152  HUFFMAN   V.   HUGHLETT   &   PTATT.  [BOOK   II. 

implied  promise.  The  affidavit  upon  which  the  phiintiff  was  permitted 
to  make  Huffman  a  party  assumes  the  ground  that  Springer  was  his 
agent  or  partner.  This  affidavit,  although  in  the  record,  is  no  part 
of  it,  not  being  incorporated  in  any  bill  of  exceptions.  The  trial  judge 
finds  that  in  an  action  against  the  defendants,  based  on  the  facts  of 
the  case,  as  all  of  our  civil  actions  are  now  under  the  Code,  for  the 
value  of  property  wrongfully  converted.  Springer  took  and  converted 
the^Jogs  of  plaintiffa^_saAved  them  into  lumber,  and  sold^the  lUJWber 
to  Huffman  without  authority  of  the  plaintiffs,  and  that  both  defend- 
ants are  liable  to  the  plaintiffs  for  the  value  of  the  property,  it  is  now 
insisted  for  the  defendant  Huffman,  that  the  suing  out  of  the  original 
attachment  against  Springer  was  a  waiver  of  the  tofflh'Theljri^inal 
faking,  the  result  of  which  was  to  turn  Springer  into  a  purchaser  ot 
flie"chattels,  and  to  validate  the  sale  by  him  to  Huffman. 

The  argument  in  support  of  the  position  thus  taken  is  rested  partly 
on  the  decisions  of  this  court,  which  give  to  the  action  on  the  implied 
promise  arising  from  a  conversion  of  personality  all  the  incidents  of 
any  other  action  ex  contractu,  and  partly  on  the  holdings  of  the  court, 
as  to  the  effect  of  the  waiver  of  a  tort  on  the  rights  of  action  of  the 
injured  party.  But  the  fact  that  a  suit  in  a  particular  form  of  action 
must  have  all  the  incidents  attached  by  law  to  that  form  of  action, 
can  have  no  necessary  bearing  on  the  effect  of  the  form  of  action  on 
the  rights  or  remedies  of  the  plaintiffs.  And  the  holdings  of  the 
court  on  the  effect  of  the  waiver  of  a  tort,  which  have  been  cited,  only 
go  to  this  extent  that  if  the  aggrieved  party  after  a  technical  con- 
version resume  possession  of  the  property  as  owner,  or  otherwise  assents 
to  the  tortious  taking,  the  remedy  in  trover  is  gone.  Trayner  v.  John- 
son, 1  Head,  51;  Bell  v.  Cunmings,  3  Sneed,  275;  2  Greenl.  Ev., 
sec.  642,  note  3.  He  may  still  sue  in  case  for  the  tort  which  he  might 
have  treated  as  a  conversion,  or  in  assumpsit  upon  the  implied  promise. 

Scruggs  V.  Davis,  5  Sneed,  262;  Railroad  v.  Henderson,  1  Lea,  1. If 

the_actiQDLl)e  in  contract,  it  is  not  strictly  a  waiver  of  the  tort,  for  the 
tort  is  the  very  foundation  of  the  action,  but,  as  Nicholson.  C.  J., 
has  more  accurately  expressed  it,  a  waiver  of  the  "damages  for_the 
conversion,"  and  a  suing  for  the  value  of  the  property.  Kirkman  v. 
i?hilips,  7  Heis.  222,  224.  ItUs  simply  an  election  between  remedies 
for  an  act  done,  leaving  the  rights  of  the  injured  party  againsLt^ie 
wrongdoers  unimpaired  until  he  has  obtained  legal  satisfaction.  _  If  it 
were  otherwise,  the  suing  of  any  cne  of  a  series  of  tort  feasors,  even 
the  last,  on  the  implied  promise,  where  there  was  clearly  no  contract, 
would  give  him  a  good  title  and  release  all  the  others.  No  authority 
has  been  produced  sustaining  such  a  conclusion,  and  we  arc  not  in- 
clined to  make  one. 

The  trial  judge  finds  that  Springer  was  guilty  of  a  conversion  of  the 
property.  Of  course,  he  could  communicate  no  title  to  a  third  person, 
even  if  he  were  a  bona  fide  purchaser  for  value  and  without  notice. 


CHAP.    I.]  HUFFMAN   V.   HUGHLETT   &   PYATT.  153 

Even  in  such  a  case  the  right  to  recover  the  property,  if  in  existence, 
or  its  value  if  disposed  of  by  the  purchaser,  would  be  clear.  Price  v. 
Jones,  3  Head.  85.  Whether  a  demand  and  refusal  are  necessary  to 
establish  a  conversion  in  such  cases  is  left  in  some  obscurity  by  the 
authorities.  They  are  only  evidence  of  a  conversion,  and  are  unneces- 
sary where  there  is  other  evidence  of  the  conversion.  Houston  v.  Dyche, 
Meigs.  76.  The  tendency  of  our  decisions  is  to  limit  the  requirement 
to  cases  where  the  possession  was  rightfully  acquired,  and  dispense  with 
it  where  the  act  of  taking  possession  was  itself  a  conversion.  Mer- 
chants' National  Bank  v.  Trenholm,  13  Heis.  520.  The  trial  judge 
in  this  case  does  not  find  that  Huffman  was  a  bona  fide  purchaser 
without  notice.  He  finds  that  the  property  was  sold  to  him  by  the 
first  wrongdoer  without  authority  from  the  plaintiffs.  The  dominion 
or  control  thus  acquired  would  necessarily  be  in  his  own  right,  and 
adverse  to  the  right  of  the  true  owner.  And  the  facts  would  warrant 
the  conclusion  reached  by  the  trial  court.  The  findings  are  not  in 
the  nature  of  a  special  verdict  to  w^hich  the  court  is  to  apply  the  law, 
but  facts  from  which  the  judge,  acting  as  a  jury,  might  draw  the 
necessary  conclusions  for  a  general  verdict. 
Affirm  the  judgment.^ 

4n  determining  the  liability  of  a  second  tort  feasor,  after  action  brought 
or  judgment  obtained  against  a  first,  two  points  must  be  kept  in  mind:  First, 
the  nature  of  the  liability  of  co-tort-feasors,  whether  joint,  or  joint  and 
several ;  and,  secondly,  the  question  as  to  when  there  has  been  an  election  of 
remedies   (for  which  see  note  to  Marsh  v.  Pier,  supra). 

In  England  the  liability  is  considered  joint  only.    Lendall  v.  Pinfold  (1854) 

1  Leon.  19  [ouwre];  Brown  v.  Wooton  (1605-6)  Yelv.  66,  S.  C.  Cro.  Jac.  73, 
Moore,  762:  Warden  v.  Bailey  (1811)  4  Taunt.  67,  88;  King  v.  Hoare  (1844) 
13  M.  &  W.  494;  Brinsmead  v.  Harrison  (1872)  L.  R.  7  C.  P.  547;  1  Chitty, 
Pleading,  100;  Buller,  >;.  P.  20;  Comyn's  Dig.,  title  Action,  K  (4);  [but 
Williams  in  a  note  to  1  Saunders,  207a,  says:  "It  seems  clear,  that  where  any 
action  founded  upon  a  tort,  such  as  assault  and  battery,  false  imprison- 
ment, trover  and  the  like,  is  brought  against  several  defendants,  though  they 
all  join  in  the  same  plea,  and  be  found  jointly  guilty,  yet  the  plaintiff 
may  after  verdict  enter  a  nolle  prosequi  as  to  some  of  them,  and  take  his 
judgment  against  the  rest.  1  Ld.  Raym.  397,  Coux  v.  Lowther;  1  Wils.  306, 
Dale  V.  Eyre;  and  the  reason  thereof  seems  to  be,  because  these  actions  [are] 
joint  and  several."     And  see  Morton's  Case   (1584)   Cro.  Eliz.  30;  Anonymoiis 

(1585)    3   Leon.    122;    per   Showers,   arguendo,   in   Claxton   v.    Swift    (1684) 

2  Show.  494;  Lord  Mansfield,  in  Bird  v.  Randall  (1762)  3  Burr.  1346,  1353; 
Mitchell  V.  Tarbutt  (1794)  5  T.  R.  649;  Martin  v.  Kennedy  (1800)  2  B.  &  P. 
69;  Sutton  V.  Clarke  (1815)  6  Taunt.  29;  Day  r.  Porter  (1S.3S)  2  Moo.  & 
R.  151;  opinions  of  Kent,  C.  J.,  in  Livingston  r.  Bishop  (1806)  1  Johns.  290, 
and  of  HosMER,  C.  J.,  in  Sheldon  v.  Kibbe  (1819)  3  Conn.  214,  where  the  early 
English  authorities  are  discussed;  Freeman,  Judgments,  §  236]  ;  and  so,  under 
a  declared  analogy  to  join  obligors.  King  v.  Hoare,  supra,  it  was  properly 
held  that  an  unsatisfied  judgment  in  tort  against  one  tort-feasor,  was  a  bar 
to  an  action,  sounding  in  assumpsit  against  the  other.     Buckland  i\  Johnson 


154  TOMKINS  V.  BERNET.  [BOOK   II. 

SECTION   II. 

Money  Paid  by  Plaintiff  under  Compulsion. 

1.    under  duress^  legal  or  equitable. 


TOMKINS  V.  BEENET. 

Nisi  Prius,  1693. 

[Salkeld,  22.^] 

Three  were  bound  in  an  usurious  obligation;  one  of  them  paid 
some  part  of  the  money,  and  afterwards  the  obligee  brought  debt 
against  another  of  the  obligors,  who  pleaded  the  statute  of  usury,  and 
avoided  the  bond ;  and  now  the  obligor  that  had  paid  some  part  of  the 

(1854)  15  C.  B.  145,  though  Parke,  B.,  in  King  v.  Hoare,  suggests  that  the 
first  judgment  would  not  be  a  bar  if  the  liability  were  joint  and  several. 

In   America,   generally,   "tv»o  UnKi'^ifj-^Pft^  ^.ivjc   .»■■■,. .ni^  lu.iHiy    ■ i-&-iJann 

one  person  is  always  several  as,  well  ns  joijit."  Creed  v.  Hartmann  (1864) 
29  N.  Y.  591,  597;  "for  all  or  any  may  be  siied  at  the  election  of  the  plaintiflf." 
Blann  v.  Crocheron  (1851)  19  Ala.  647,  S.  C.  54  Am.  Dec.  203,  and  notes; 
Chamberlin  v.  Murphy  (1868)  41  Vt.  110,  118;  Livingston  v.  Bishop  (1806) 
1  Johns.  290;  Sheldon  v.  Kibbe  (1819)  3  Conn.  214;  Atwater  v.  Tupper 
(1877)  45  Conn.  144;  Sanderson  v.  Caldwell  (1826)  2  Aiken,  195;  Rose  v. 
Oliver  (1807)  2  Johns.  365;  Smith  v.  Rines  (1836)  2  Sumn.  338;  Ayer  v. 
Ashmead  (1863)  31  Conn.  447,  453;  Brady  v.  Ball  (1860)  14  Ind.  317; 
Whitaker  v.  English  (1784)  1  Bay,  15;  Jones  v.  Lowell  (1853)  35  Me.  538. 
But  see,  Wilkes  v.  Jackson  (1808)  2  Hen.  &  Munf.  355;  Floyd  v.  Browne 
(1829)  1  Rawle  121;  Rogers  v.  Moore  (1838)  1  Rice,  60;  Hunt  v.  Bates 
(1862)  7  R.  I.  217;  see  also.  Freeman,  Judgments,  §  236.  Accordingly,  a  plea 
in  abatement  for  non-joinder  of  co-tort-feasors  does  not  lie.  Bloss  v.  Plymale 
(1869)  3  W.  Va.  393  [see  Mitchell  v.  Tarbutt  (1794)  5  T.  R.  649];  nor  will 
judgment  be  arrested  because  all  were  not  joined,  Rose  v.  Oliver,  svpra,  though 
joint  tenants  of  real  property  involved  must  be  joined.  Low  v.  Mumford 
(1817)  14  Johns.  426.  Therefore,  if  the  concurrent  remedies  are  consistent 
and  compatible,  Rawsoni^T  Turner  (1809)  4  Johns.  4697  liote  to  Smith  v. 
Hodson,  3  Smith's  Lead.  Cas.  (6th  ed.)  198,  jmless  there  has  been  full  satia.- 
f  actioiij^Hawkins  V.  Hatton  (1818)  1  Nott&Mc.318;  McGehee  v.  Shafer  (1855) 
15  Tex.  198;  Hepburn  v.  Sewell  (1821)  5  Harris  &  J.  211;  Thomas  v.  Rumsey 
(1810)    6  Johns.  26;    Stone  v.  Dickinson    (1862)    5  Allen,  29;   Livingston  v. 

^This  case  is  likewise  reported  in  1  Skinner,  411,  as  tried  before  Holt,  C.  J., 
in  which  that  learned  judge  reiterated  his  deep-rooted  opposition  to  the 
extension  of  the  action  of  assumpsit:  "And  if  they  will  make  such  [usurious] 
contracts,  they  ought  to  be  punished;  and  he  was  not  for  encouraging  such 
kinds  of  indelitatns  assumpsits." — Ed. 


CHAP.    I.]  TOMKINS  V.  BERNET.  155 

money  without  cause  to  the  obligee,  brought  an  indebitatus  assumpsit 
against  him  to  recover  back  that  money.  Treby,  C.  J.,  allowed  that 
where  a  man  pays  money  on  a  mistake  in  an  account,  or  where  one  pays 
money  under  or  by  a  mere  deceit,  it  is  reasonable  he  should  have  his 
money  again;  but  where  one  knowingly  ^^ays_iQimey  upon  an  illegnl- 
consideration,  the  party  that_receives  it  ought  to  be  punished  f orjiis 
o5eiTCU','Tmd~tITe  party  that  pays  it  is  particeps  criminis;  and  there  is 
no  reason  thar  he  should  have  his  money  again,  for  he  parted  witlj  if 
freely,  and  volenti  non  fit  injuria^  This  case  was  cited:  One  bound 
in  a  policy  of  assurance,  believing  the  ship  to  be  lost  when  it  was  not, 
paid  his  money,  and  it  was  held  he  might  bring  an  assumpsit  for  the 
money.  One  was  employed  as  a  solicitor,  and  had  money  given  him 
to  bribe  the  custom-house  officers;  and  he  laid  out  the  money  accord- 
Bishop,  supra,  a  judgment  against  one  tort  feasor  is  generally  no  bar  to  an 
action  against  another,  the  actions Jtieiiig_the  same.  White  v.  Waste  Corp. 
(lt)Cri)  178  Mass.  20  (assumpsit);  Rawson  v.  Turner,  supra  (debt,  the 
latter  action  against  a  sheriff  for  an  escape,  judgment  and  execution  having 
issued  against  his  predecessor).  Sharp  v.  Gray  (1844)  5  B.  Mon.  4  (detinue)  ; 
Osterhout  v.  Roberts  (1827)  8  Cowen,  43;  Atwater  v.  Tupper,  supra  (trover)  ; 
Wright  V.  Lathrop  (1825)  2  Ohio,  33  (elaborately  argued);  Knott  v.  Cun- 
ningham (1854)  2  Sneed,  204;  Griffie  v.  McClung  (1872)  5  W.  Va.  131; 
Collard  v.  Railroad  Co.  (1881)  6  Fed.  246  (trespass);  Sheldon  v.  Kibbe, 
supra;  Wilkes  v.  Jackson,  supra  (assault  and  battery).  Where  the  two 
actions  have  been  different,  the  rulings  have  been  various.^^  Sanderson "  v. 
Caldwell  (1826)  2  Aiken,  195  (recovery  allowed,  trespass  and  trover),  contra, 
Johnson  v.  Packer  (1817)  1  Nott  &  Me.  1;  Hunt  v.  Bates  (1862)  7  R.  I.  217 
(recovery  denied,  trover  and  trespass)  ;  Elliot  v.  Porter  (1837)  5  Dana,  299 
(recovery  permitted,  detinue  and  trover);  Du  Bose  v.  Marx  (1875)  52  Ala. 
506  (recovery  permitted,  detinue  and  trespass);  Floyd  v.  Bro^vne  (1829) 
1  Rawle,  121  (recovery  refused,  tort  and  assumpsit,  but  in  Pennsylvania  a 
judgment  passes  title,  s^tpra)  ;  Hyde  v.  Noble  (1843)  13  N.  H.  494  (first 
assumpsit  for  breach  of  contract),  Du  Bose  v.  Marx,  supra,  Ins.  Co.  v. 
Cochran  (1855)  27  Ala.  228  (on  the  theory  of  ratification),  Terry  v.  Munger 
(1890)  121  N.  Y.  161  (in  all,  recovery  refused,  assumpsit  and  tort).  It^  has 
been  held  that  partial  satisfaction  for  a  tort^  do^s  not  bar  a  recovery  for  the 
balance.  Chamberlin  v.  Murphy  (1868)  41  Vt.  110;  Lovejoyinsriifray'(TSB5) 
3  Wall.  1  (see  latter  for  discussion  of  the  general  principle)  ;  Marlborough 
17.  Sisson  (1863)  31  Conn.  332.  But  a  partial  satisfaction  on  a  judgment  con- 
clusively determines,  as  to  both  parties,  the  measure  of  damages.  United 
Society  of  Shakers  v.  Underwood  (1875)  74  Ky.  265.  Execution,  without  satis- 
faction has  been  held  to  bar  a  second  suit,  White  v.  Philbrick  (1827)  5  Greenl. 
147;  Campbell  v.  Phelps  (1822)  1  Pick.  62;  but  execution  against  the  person 
has  been  deemed  insufficient.  Osterhout  v.  Roberts,  supra;  Sheldon  v.  Kibbe, 
supra.  And  a  discharge  of  one  has  been  held  a  discharge  of  all,  unless  the 
contrary  clearly  appears.  Eastman  v.  Grant  (1861)  34  Vt.  387;  Ayer  v. 
Ashmead  (1863)  31  Conn.  447;  Allen  v.  Wheatly  (1834)  3  Blackf.  332; 
Irwin  V.  Scribner  (1860)  15  La.  Ann.  583;  Baker  v.  Lovett  (1809)  6  Mass. 
78.— Ed. 


156  BOSANQUETT    V.    DASHWOOD.  [BOOK    II. 

ingly. '   Assumpsit  was  brought  against  the  solicitor  for  this  money, 
and  held  it  lay  not.^ 


BOSANQUETT  v.  DASHWOOD. 

High  Court  of  Chancery,  1735. 

[Cases  Tempore  Talbot,  37.] 

The  plaintiffs  being  assignees  under  a  commission  of  bankruptcy 
against  the  two  Cottons,  brought  their  bill  against  Dashwood  the 
defendant,  as  executor  of  Sir  Francis  Dashwood,  who  had  in  his  life- 
time lent  several  sums  to  the  Cottons,  the  bankrupts,  upon  bonds 
bearing  £6  per  cent,  interest,  being  the  then  legal  interest,  and  had 
taken  advantage  of  their  necessitous  circumstances,  and  compelled 
them  to  pay  at  the  rate  of  £10  per  cent.,  to  which  they  submitted,  and 
entered  into  other  agreements  for  that  purpose ;  and  so  continued  pay- 
ing £10  per  cent,  from  the  year  1710  to  the  year  1724. 

It  was  decreed  at  the  Eolls  that  the  defendant  should  account ;  and 
that  for  what  had  been  really  lent,  legal  interest  should  be  computed 
and  allowed:  and  what  had  been  paid  over  aiKTabove  legal  interest 
should  be  deducted  out  of  the  principal  at  the  time  paid;  and  the 
plaintiffs  to  pay  what  should  be  due  on  the  account :  and  if  the  testator 
had  received  more  than  was  due  with  legal  interest,  that  was  to  be 
-TpfiiT^flpfl  by  t.bp  defendant,  and  the  bonds  to  be  delivered  up. 

Lord  Chancellor  [Talbot].  There  is  no  doubt  of  the  bonds  and 
contracts  therein  being  good :  but  it  is  the  subsequent  agreement  upon 
which  the  question  arises.  It  is  clear  that  more  has  been  paid  than 
legal  interest.  That  appears  from  the  several  letters  which  have  been 
read,  and  which  prove  an  agreement  to  pay  £10  per  cent.,  and  that 
from  Sir  Francis  Dashwood's  receipts;  but  whether  the  plaintiffs  be 
entitled  to  any  relief  in  equity,  the  money  being  paid,  and  those  pay- 
ments agreed  to  be  continued,  by  several  letters  from  the  Cottons  to 
Sir  Francis  Dashwood,  wherein  are  promises  to  pay  off  the  residue, 
is  now  the  question. 

The  only  case  that  has  been  cited  that  seems  to  come  up  to  this,  is 
that  of  Tomkins  v.  Bernet,  1  Salk.  23,  which  proves  only,  that  where 
the  party  has  paid  a  sum  upon  an  illegal  contract,  he  shall  not  recover 
it  upon  an  action  brought  by  him.   And  though  a  court  of  equity  will 

'When  the  principal  case  was  cited  in  argument  in  Clark  v.  Shea  (1774) 
Cowp.  197,  Lord  Mansfield  interposed  "That  case  has  been  denied  a  thousand 
times,"  and  in  his  delivering  judgment  the  same  learned  judge  said:  "The 
case  of  Tomkins  v.  Bernet  has  been  long  exploded.  In  Bosanquett  v.  Dash- 
wood, Lord  Hardwicke  and  Lord  Talbot  both  declared  their  disapprobation 
of  it;  for  in  that  case  there  was  not  par  delictum." 

See  further  criticism  of  the  ease  in  Smith  v.  Bromley,  post. — Ed. 


CHAP.    I.]  BOSAXQUETT    I'.    DASHWOOD.  157 

not  differ  from  the  courts  of  law  in  the  exposition  of  statutes;  yet  does 
it  often  vary  in  the  remedies  given,  and  in  the  manner  of  applying 
them. 

The  penalties,  for  instance,  given  by  this  act,  are  not  to  be  sued  for 
here;  nor  could  this  court  decree  them.  And  though  no  indebitatus 
assumpsit  will  lie,  in  strictness  of  law,  for  recovering  of  money  paid 
upon  an  usurious  contract;  yet  that  is  no  rule  to  this  court,  which 
will  never  see  a  creditor  running  away  with  an  exorbitant  interest 
beyond  what  the  law  allows,  though  the  money  has  been  paid,  without 
relieving  the  party  injured.  The  case  of  Sir  Thomas  Meers,  heard 
by  the  Lord  Harcourt,  is  an  authority  in  point,  that  this  court  will 
relieve  in  cases,  which,  though  perhaps  strictly  legal,  bear  hard  upon 
one  party.  The  case  was  this :  Sir  Thomas  Meers  had  in  some  mort- 
gages inserted  a  covenant,  that  if  the  interest  was  not  paid  punctually 
at  the  day,  it  should  from  that  time,  and  so  from  time  to  time,  be 
turned  into  principal,  and  bear  interest :  upon  a  bill  filed,  the  Lord 
Chancellor  relieved  the  mortgagors  against  this  covenant  as  unjust 
and  oppressive.  So  likewise,  is  the  case  of  Broadway,  which  was  first 
heard  at  the  Rolls,  and  then  affirmed  by  the  Lord  Kixg,  an  express 
authority  that  in  matters  within  the  jurisdiction  of  this  court  it  will 
relieve,  though  nothing  appears  which,  strictly  speaking,  may  be  called 
illegal.  The  reason  is,  because  all  those  cases  carry  somewhat  of  fraud 
with  them.  I  do  not  mean  such  a  fraud  as  is  properly  deceit;  but 
such  proceedings  as  lay  a  particular  burden  or  hardship  upon  any 
man :  it  being  the  business  of  this  court  to  relieve  against  all  offences 
against  the  law  of  nature  and  reason:  and  if  it  be  so  in  cases  which, 
strictly  speaking,  may  be  called  legal,  how  much  more  shall  it  be  so, 
where  the  covenant  or  agreement  is  against  an  express  law  (as  in  this 
case)  against  the  statute  of  usury,  though  the  party  may  have  sub- 
mitted for  a  time  to  the  terms  imposed  on  him? — Tjie  payment  of 
th&-iQ0iiey  will  not  alter  the  case  in  a  court  of  equit}'' ;  for  it  ought  not 
to4**ve-beejQj2iiid :  and  the  maxims  of  volenti  non  fit  injuria  will  hold 
as  well  in  all  cases  of  hard  bargains,  against  which  the  court  relieves, 
as  in  this.  It  is  only  the  corruption  of  the  person  making  such  bar- 
gains that  is  to  be  considered ;  it  is  that  only  which  the  statute  has 
in  view ;  and  it  is  tliat  only  which  entitles  the  party  oppressed  to  relief. 
This  answers  the  objection  that  was  made  by  the  defendant's  counsel, 
of  the  bankrupts  hemgjparticeps  criminis ;  for  they  axe^joppifissfid.,  and 
their  necessities  obliged  them  to  submit  to  those  terms.  Nor  can  it 
T5e"said  in  any  case  of  oppression,  that  the  parEy~oppfessed  is  particeps 
criminis;  since  it  is  that  very  hardship  which  he  labors  under,  and 
which  is  imposed  on  him  by  another,  that  makes  the  crime.^     The 

^"The  rule  is,  in  pari  delicto,  potior  est  conditio  defendentis :  and  there  are 
several  other  maxims  of  the  same  kind.  .  .  .  But,  w^here  contracts  or  tr^as- 
actions  are  prohibited  by  positive  statute,  for  the  sake  of  protecting  one  set 
ofTnen  from  another  set  of  men ;  the  one,  from  their  situation  and  condition, 


158  BOSANQUETT   V.   DASHWOOD,  [BOOK   II. 

case  of  gamesters,,  to  which  this  has  been  compared,  is  no  way  parallel ; 
for  there,  both  parties  are  criminal :  and  if  two  persons  will  sit  down 
and  endeavor  to  ruin  one  another,  and  one  pays  the  money,  if  after 
payment  he  cannot  recover  it  at  law,  I  do  not  see  that  a  court  of  equity 
has  anything  to  do  but  to  stand  neuter;  there  being  in  that  case  no 
oppression  upon  one  party,  as  there  is  in  this.  Another  difficulty  was 
made  as  to  the  refunding:  but  is  not  that  a  common  direction  in  all 
cases  where  securities  are  sought  to  be  redeemed,  that  if  the  party 
has  been  overpaid,  he  shall  refund  ?  Must  he  keep  money  that  he  has 
no  right  to,  merely  because  he  got  it  into  his  hands  ? — I  do  not  deter- 
mine how  it  would  be,  if  all  the  securities  were  delivered  up;  this  is 
not  now  before  me:  I  only  determine  what  is  now  before  the  court; 
and  is  the  common  direction  in  all  cases  where  securities  are  sought  to 
be  redeemed.^ 

And  so  affirmed  the  decree,  &c. 

beXn^  liable  to  be  oppressed  or  imposed  upon  by  the  other;  f^ere,  the  parties 
are  not  in  pari  delicto ;  and  in  furtherance  of  these  statutes,  the  person  injured, 
after  the  transactToTTls  finished  and  completed,  may  bring  his  action  and 
defeai^  the  contract.  For  instance,  by  the  statute  of  usury,  taking  InbreTIian 
5  per  cent,  is  declared  illegal,  and  the  contract  void;  but  these  statutes  were 
made  to  protect  needy  and  necessitous  persons  from  the  oppression  of  usurers 
and  monied  men,  who  are  eager  to  take  advantage  of  the  distress  of  others; 
whilst  they,  on  the  other  hand,  from  the  pressure  of  their  distress,  are  ready 
to  come  into  any  terms,  and,  with  their  eyes  open,  not  only  break  the  law, 
but  complete  their  ruin.  Therefore,  the  party  injured  may  bring  an  action  for 
the  excess  of  interest."  Per  Lord  Mansfield,  in  Browning  v.  Morris  (1778) 
Cowp.  790,  792,  post  669.— Ed. 

^Accord:  Fanning  v.  Dunham  (1821)  5  Johns.  Ch.  122.  In  the  absence  of 
a  statute  to  the  contrary  "this  represent"  thq  gpneial  view.  Heacock  v.  JSwart- 
wout,  28  111.  291  [1862];  Sutphen  v.  Cushman,  35  111.  186  [1864].  For  the 
rule  applied  in  cases  where  the  mortgagor  is  defendant,  see  Kuhner  v.  Butler, 
11  la.  410  [1861];  Union  Bank  r  Bell,  14  Oh.  St.  200  [1863];  Snyder  v. 
Griswold,  37  111.  216  [1865].  Compare  Hunt  v.  Acre,  28  Ala.  (N.  S.)  580 
[1856]."     Note  to  Kirchwey's  Cases  on  Mortgages,  233. 

For  the  efYeet  of  a  statute  upon  the  right  of  recovery  and  the  relief  granted, 
see  Williams  v.  Fitzhugh  (1868)  37  N.  Y.  444;  Marvin  v.  Mandell  (1878) 
125  Mass.  562;  Gist  v.  Smith  (1880)  78  Ky.  367.  As  to  whether  a  trans- 
action tainted  with  usury  may  be  split  up,  so  as  to  permit  recovery,  see  Shaw  v. 
Carpenter  (1881)  54  Vt.  155. 

In  discussing  the  efTect  of  the  statute  of  limitations  upon  usurious  pay- 
ments the  court  said  in  Albany  u.  Abbott  (1881)  61  N.  H.  157,  159:  "E:tery_time 
the  plaintiffs  paid  the  defendant  usury,  a  cause  of  action  accrued  ( Breckenridge 
V.  Churchill,  3  J7  J.  ivrarih.  15^),  against  which  the  statute  immediately  com- 
menced to  run  (Rushing  v.  Rhodes,  6  Ga.  228,  Davis  v.  Converse,  35  Vt.  503), 
and  consequently  the  plaintiffs  can  only  recover  the  illegal  interest  actually 
paid  as  such  within  six  years  next  before  the  commencement  of  this  suit." — Ed. 


CUAP,    I.]  SMITH    V.    BROMLEY.  159 

SMITH  V.  BEOMLEY. 

King's  Bench,  1760. 

[2  Douglas,  696.] 

Action  for  money  had  and  received  to jthe  plaintiff's  use ;  upon  this 
case:  The  plaintiff's  brother  having  cmnmit.ted  nn  act  of  bankruptcy, 
the  defendant,  being  his  chief  creditor,  took  out  a  commission  against 
him,  hut,  af terwards,  frndtng  no  dividend  likely  to  be  made,  reused 
to~sign  his  certificate.  But  on  frequent  application  and  earnest 
entreaties,  made  by  the  bankrupt  to  one  Oliver,  e.  tradesman  in  town, 
who  was  an  intimate  friend  of  the  defendant,  who  lived  in  Cheshire, 
he  got  Oliver  to  write  to  the  defendant  several  times,  and  he  at  last 
prevailed  on  the  defendant  to  send  him,  Oliver,  a  letter  of  attorney, 
empowering  him  to  signJJie  cprtifipatp,  whinh  Dliver  jgQuld  not  jdo, 
unless  the  bankrupt,  or  somebody  f  a^^  Kixn..^  wnnlr]  nrlvancp  £40  ajid 
give  a  note  for  £20  more,  and  which,  on  Oliver's  signing  the  certificate 
for  the  defendant,  the  plaintiff  (who  was  the  bankrupt's  sister),  paid, 
and  gave  to  Oliver  accordingly,  who  thereupon  gave  her  a  receipt  for 
the  money,  promising  to  return  it  if  the  certificate  was  not  allowed  by 
the  Chancellor.  The  certificate  was  allowed.  The  j)laintiff  after- 
wards  brought  her  action  nanmst  Qlivpr  fr>  rf^nnvf^r  hanlr  t^ie-^jfl  fr^m 
him,  but,  that  action  coming  on  to  be  tried  before  Lord  ^Iansfield, 
at  Guildhall,  at  the  sittings  after  last  Trinity  term,  and  it  then  appear- 
ing that  Olixer  had  actually  paid  over,  nr  nccnnnted_for^he  £40  jo 
Bromley,  and  his  lordship  being  clearly  of  opinion  that  this  action 
woulrt— not  lie  against  the  plaintiff's  own  agent,  who  had  actually 
applied  the  money  to  the  purpose  for  which  it  was  paid  to  him,  the 
plaintiff  was  nonsuited  in  that  action ;  and  now  sheJ)rought  this  action 
against  Bromley  hirnself ;  which  coming  on  to  be  tried,  it  was^pFoved 
that  the  money  was  received  by  Oliver,  and  paid  over  to  the  defendant. 

It  was  contended  for  the  plaintiff,  that  this  money  was  paid  either 
without  consideration,  or  upon  one  that  was  illegal,  and,  in  either  case, 
was  recoverable  back  by  this  action. 

For  the  defendant,  it  was  argued,  that  there  was  certainly  a  con- 
sideration for  the  payment  of  the  money,  to  wit,  the  signing  of  the 
bankrupt's  certificate;  That,  if  this  consideration  was  illegal,  the 
plaintiff'  was  particeps  criminis,  had  paid  it  voluntarily  and  knowingly, 
and  without  any  deceit,  and  so  was  within  the  case  of  Tomkins  v. 
Bernet,  H.  5  Will.  3,  at  N.  Pr.,  before  Tkeby,  Chief  Justice,  1  Salk. 
22;  but  that  there  was  nothing  illegal  in  it;  for  it  was  the  money 
of  a  third  person,  and  so  no  dimimition  of  the  bankrupt's  effects,  or 
fraud  upon  his  creditors;  in  which  case  only,  whereby  the  distribution 
becomes  unequal,  is  there  any  iniquity  in  receiving  a  consideration  for 
siji^ninff  the  certificate. 


160  SMITH    V.    BROMLEY.  [BOOK    II. 

But  Lord  Mansfield  was  of  a  different  opinion.  He  said,  it  was 
iniquitous  and  illegal  in  the  defendant  to  take,  and,  therefore,  it  was 
so  to  detain  this  £40.  If  a  man  makes  use  of  what  is  in  his  own  power 
to  extort  money  from  one  in  distress,  it  is  certainly  illegal  and  oppres- 
sive, and,  whether  it  was  the  bankrupt  or  his  sister  that  paid  the 
money,  it  is  the  same  thing.  The  taking  money  for  signing  certificates 
is  either  an  oppression  on  tlie_bankrupt  or  his  family  or  a  fraud_oiL 
his^other  creditoiu.  It  was  a  thing  wrong  in  itself,  before  any  pro- 
vision was  made  against  it  by  statute;  for  if  the  bankrupt  has  con- 
formed to  all  the  law  requires  of  him,  and  has  fairly  given  up  his  all, 
the  creditor  ought  in  justice  to  sign  his  certificate;  but,  on  the  other 
hand,  if  the  bankrupt  has  been  guilty  of  any  fraud  or  concealment, 
the  creditor  ought  not  to  sign  for  any  consideration  whatever.  If  any 
near  relation  is  induced  to  pay  the  money  for  the  bankrupt,  it  is  taking 
an  unfair  advantage,  and  torturing  the  compassion  of  his  family; 
if  it  is  the  money  of  the  bankrupt  himself,  it  is  giving  one  creditor 
his  debt  to  the  exclusion  of  the  others,  and  a  fraud  upon  them.  As 
to  the  case  cited  from  Peere  Williams,  that  only  affected  the  person 
who  petitioned.  There  might  have  been  sufficient  of  the  creditors  in 
number  and  value  to  sign  without  him,  and  he  had  a  right  to  compro- 
mise it  upon  what  terms  he  pleased.  The  petitioning,  or  not,  was 
entirely  in  his  own  power,  and  not  like  the  present  case.  Itjs  argued, 
that,  as  the  plaintiff  founds  her  claim  on  an  illegal  act,  she  shaTTjiot 
have  relief  in  a  court ^T  justice.  But^e  did  not  apply  to  the  defend- 
arTTor  his  agent  tTT^sign  the  certificate  on  an  improper  or  illegai 
consideratTonJ  but,  as  the"  defehdiiir^ Insisted  up"on""it,  she,  in_cpm- 
"passion  to  her  brother,  paid  what  lie  required.  If  the  act  is  in  itself 
immoral,  or  a  violation  of  the  general  laws  of  public  policy,  there 
the  party  paying  shall  not  have  this  action ;  for  where  both  parties  are 
equally  criminal  against  such  general  laws,  the  rule  is  potior  est  con- 
ditio defendenils}  But  there  are  other  laws,  which  are  calculated  for 
the  protection  of  the  subject  against  oppression,  extortion,  deceit,  &c. 
If  such  laws  are  violated,  and  the  defendant  takes  advantage  of  the 
plaintiff's  condition  or  situation,  there  the  plaintiff'  shall  recover ;  and 
it  is  astonishing  that  the  Reports  do  not  distinguish  between  the 
violation  of  the  one  sort  and  the  other.  As  to  the  case  of  Tomkins  v. 
Bernet,  it  has  been  often  mentioned,  and  I  have  often  had  occasion  to 

*"  'The  true  test  for  determining  whether  or  not  the  plaintiff  and  the  defgn- 
dantjwerein  pafr-tf^tiiiclci,  iij  b^t-^onsiderti^g  wheth er  thV^l a i n t i ff_ could  majce 
gut  his_case  otherwise  than  "tTTfoupTi  tlie  medium  and  by  the  aid  of  the  illeg3,l 
transaction  to  wTiTcTi  Fe  was  himself  a  party  .{Simpson  -y.  Bloss,  7  Taunt.  246; 
^rivaz  v.  3IichTJl^--&  C.  B.  IHTTTT^Mellgb,  J.,  in  Taylor  v.  Chester,  L.  R. 
4  Q.  B.  Div.  309,  314. 

"  'It  is  argued  on  the  plaintiff's  behalf  that  the  claim  which  he  makes  is  for 
money  had  and  received,  traced  distinctly  to  Thaxter's  hands,  and  held  by 
a  contract  tainted  with   no  illegality;   that  the  defendant  in  order  to  resist 


CHAP.    I.]  SMITH    V.    BROMLEY.  161 

look  into  it;  l)iit  it  is  so  loosely  reported,  and  stuffed  with  such  strange 
arguments,  that  it  is  ditlicult  to  make  anything  of  it.  One  book  says 
it  was  determined  by  Lord  Holt;  another,  by  Lord  Treby.  Certain 
it  is,  it  was  only  a  Xisi  Prius  case.  I  think  the  judgment  may  have 
been  right,  but  the  reporter,  Salkcld,  not  properly  acquainted  with  the 
facts,  has  recourse  to  false  reasons  in  support  of  it.  The  case  must 
have  been,  as  I  take  it,  an  action  to  recover  back  what  had  been  paid, 
in  part  of  principal  and  legal  interest  upon  an  usurious  contract; 
and  therefore,  the  action  would  not  lie,  for  so  far  as  principal  and 
legal  interest  went,  the  debtor  was  obliged  in  natural  justice  to  pay, 
therefore  he  could  not  recover  it  back.  But  for  all  above  legal  interest, 
equity  will  assist  the  debtor  to  retain,  if  not  paid,  or  an  action  will  lie 
to  recover  back  the  surplus,  if  the  whole  has  been  paid.  The  reporter, 
not  seeing  this  distinction,  has  given  the  absurd  reason,  that  volenti 
noil  fit  injuria;  and,  therefore,  the  man,  who  from  mere  necessity  pays 
more  than  the  other  can  in  justice  demand,  and  who  is  called,  in  some 
books,  the  slave  of  the  lender,  shall  be  said  to  pay  it  willingly,  and 
have  no  right  to  recover  it  back,  and  the  lender  shall  retain;  though 
it  is  in  order  to  prevent  this  oppression  and  advantage  taken  of  the 
necessity  of  others,  that  the  law  has  made  it  penal  for  him  to  take ! 
This  kind  of  reasoning  is  equally  applicable  to  the  case  of  a  bailiff 
who  takes  garnish-money  from  his  prisoner.  It  is  wrong  for  the 
bailiff  to  take  it,  and  it  is  therefore  wrong  for  the  other  to  tempt  him, 
and  volenti,  etc.  and  therefore  he  shall  not  recover  it  back;  but  this 
has  been  determined  otherwise.  The  case  of  money  given  to  a  solicitor 
to  bribe  a  custom-house  officer,  cited  in  that  of  Tomkins  v.  Bernet, 
is  against  his  own  agent,  and,  therefore,  he  cannot  recover.  But  the 
present  is  the  case  of  a  transgression  of  a  law  made  to  prevent  oppres- 
sion, either  on  the  bankrupt,  or  his  family,  and  the  plaintiff  is  in  the 
case  of  a  person  oppressed,  for  whom  money  has  been  extorted,  and 
advantage  taken  of  her  situation  and  concern  for  her  brother.  This 
does  not  depend  on  general  reasoning  only;  but  there  are  analogous 
cases,  as  that  of  Astley  v.  Eeynolds,  B.  E.  M.  5  Geo.  2,  2  Str.  915. 
There,  the  plaintiff  having  pawned  some  goods  with  the  defendant  for 
£20  he  refused  to  deliver  them  up,  unless  the  plaintiff  would  pay  him 
£10.  The  plaintiff  had  tendered  £4,  which  was  more  than  the 
legal  interest  amounted  to;  but,  finding  that  he  could  not  otherwise 

the  claim  is  obliged  to  set  up  an  illegal  agreement,  and  rely  upon  it,  and  that 
this  necessity  is  the  test  as  to  the  equality  of  the  delict.  However  ingenious 
this  suggestion  may  be,  it  can  hardly  prevent  the  court  from  taking  the  whole 
transaction  together  and  considering  what  it  is  in  substance  and  effect.  The 
supplication  of  the  maxim  in  pari  delicto,  etc.,  does  not  depend  upon  anv 
technical  rule  as  to~tthich  party  is  Ihe  fiisl  lu  uige  it  upon  the  court  in  the 
pleadTngs.  Tn  practice,  it  is  usually  inststed^ponT)y~the  defendant  in  answer 
to  a  jtrima  fflct'c  case.'— WELLS,  J.,  in  Sampson  v.  Shaw,  101  Mass.  145, 
151."     Keener's  note. — Ed. 


163  SOLINGER  V.   EARLE,  [BOOK    II.. 

get  his  goods  back,  he  at  hist  paid  the  whole  demand,  and  brought  an 
action  for  the  surplus  beyond  legal  interest,  as  money  had  and  received 
to  his  use,  and  recovered.  It  is  absurd  to  say,  that  any  one  transgresses 
a  law  made  for  his  own  advantage,  willingly.  Put  the  case,  that  a 
man  pawns  another's  goods ;  the  right  owner  might  be  obliged  to  pay 
more  than  the  value,  and  would  have  no  relief,  if  this  action  will  not 
lie.  As  to  the  case  of  usury,  it  was  decided  both  by  Lord  Talbot,  and 
Lord  Hardwicke,  in  the  case  of  Bosanquett  v.  Dashwood,  Cane.  M. 
8  Geo.  2,  Ca.  temp.  Talb.  38,  on  a  bill  brought  to  compel  the 
defendant  to  refund  what  he  had  received  above  principal  and 
legal  interest,  that  the  surplus  should  be  repaid.  Upon  the  whole,  I  am 
persuaded  it  is  necessary,,  for  the  better  support  and  maintenance,  of 
the  law,  to  allow  this  actionjfor  no  man  will  venture  to  take,  if  he 
knows  he  is  liable  to  refund.  Where  there  is  no  temptation  to  the 
contrary,  men  will  always  act  right. 

The  jury,  under  his  lordship's  direction,  found  a  verdict  for  the 
plaintiff,  with  £40  damages.^ 


SOLINGER  V.  EAELE. 

Court  of  Appeals  of  New  York,  1880. 

[82  New  Yorh,  393.] 

Andrews,  J.  The  complaint  alleges  in  substance  that  the  plaintiff,, 
to  induce  the  defendants  to  unite  with  the  other  creditors  of  New- 
man &  Bernhard  in  a  composition  of  the  debts  of  that  firm,  made  a 
secret  bargain  with  them  to  give  them  his  negotiable  note  for  a  portion 
of  their  debt,  beyond  the  amount  to  be  paid  by  the  composition  agree- 

^In  an  action  for  money  had  and  received  to  recover  money  paid  in  excess 
of  the  legal  rate  of  interest  upon  a  usurious  contract,  Richardson,  C.  J., 
said:  "That  wh^ijeiierJlms^ been  illegally^  taken Jjy^  tl2e_defendant  may_b£-X££flv- 
ered  by  the  plaintiff,  in  this  form  of, action,  has  not  been  seriously  contested ; 
indeed  the  law  on  the  subject  is  too  clear  to  be  disputed.  Cowp.  792,  Browning 
V.  Morris;  8  East  378,  Williams  v.  Hedley."  Willie  v.  Green  (1821)  2  N.  H. 
333,   339. 

In  this  latter  case  of  Williams  v.  Hedley  (1807)  8  East  378,  it  was 
held  by  Lord  Ellenborough,  on  the  authority  of  Smith  v.  Bromley,  supra, 
and  Browning  v.  Morris,  ante,  that  money  paid  by  A  to  B  to  compromise 
a  qui  tam  action  of  usury  brought  by  B  against  A  on  the  ground  of  a 
usurious  transaction  between  the  latter  and  one  E  may  be  recovered  in  assump- 
sit. The  prohibition  and  penalities  of  the  statute  18  Eliz.  c.  5,  attach 
only  on  the  "informer  or  plaintiff,  or  other  person  suing  out  process  in  the 
penal  action,  making  composition,"  etc.,  contrary  to  the  statute;  and  not 
upon  the  party  paying  the  composition.  The  latter,  therefore,  does  not  stand 
in  pari  delicto,  nor  is  he  particeps  criminis  with  the  compounding  informer  or 
plaintiff. — Ed. 


CHAP.    I.]  SOLINGER  V.   EARLE.  163 

iiiont.  He  gave  his  note  pursuant  to  the  bargain,  and  thereupon  the 
defendants  signed  the  composition.  The  defendants  transferred  the 
note  before  due  to  a  bona  fide  holder,  and  the  j)laintiff  having  been 
compelled  to  pay  it  brings  this  action  to  recover  the  money  paid. 
Tlie  complaint  also  alleges  that  the  plaintiff  was  the  brother-in-law 
of  Newman,  and  entertained  for  him  a  natural  love  and  affection, 
and  was  solicitous  to  aid  him  in  effecting  the  compromise,  and  that 
the  defendants  knowing  the  facts,  and  taking  an  unfair  advantage  of 
their  position,  extorted  the  giving  of  the  note  as  a  condition  of  their 
becoming  parties  to  the  composition. 

We  think  this  action  cannot  be  maintained.  TJie. agreement  between 
the  plaintiff  and_tliejlefenilants  to  secure  to  the  latter  payment  pf_> 
part  of  their  debt  in  excess  of  the  ratable  proportion  pa^'ahie.  Jinil^r 
th£_composition,_.w-a&  a  fraud-upo-n  the  otbe^ereditors.  The_^fact  that 
the  agreement  to  pay  such  excess  was  not  made  by  the  debtor,  but  by_a 
thirdl  ^person,  does  not  divest  the  transaction  of  its  fraudulent 
character. 

~A_,composition  agreement  is  an  agreement  as  well  l)etween_jthe 
cjigditors  themselves,  as  between  tTie~crediT6rs"arid^lheir  debtor.  Each 
creditor  agrees  to  receive  the  sum  fixed  by  the^B:gre'eTnmiL  in  full  for  his 
debt.  The  signing  of  the  agreement  by  one  creditor  is  often  an  induce- 
ment to  the  others  to  unite  in  it.  If  the  composition  provides  for  a 
pro  rata  payment  to  all  the  creditors,  a  secret  agreement,  by  which  a 
friend  of  the  debtor  undertakes  to  pay  to  one  of  the  creditors  more 
than  his  pro  rata  share,  to  induce  him  to  unite  in  the  composition, 
is  as  much  a  fraud  upon  the  other  creditors  as  if  the  agreement  was 
directly  between  the  debtor  and  such  creditor.  It  violates  the  principle 
of  equity,  and  the  mutual  confidence  as  between  creditors,  upon  which 
the  agreement  is  based,  and  diminishes  the  motive  of  the  creditor  who 
is  a  party  to  the  secret  agreement,  to  act  in  view  of  the  common 
interest,  in  making  the  composition.  Fair  dealing,  and  common 
honesty,  condemn  such  a  transaction.  If  the  defendants  here  were 
plaintiffs  seeking  to  ^enforce  the  note,  it  is  clear  that  they  could  not 
recover.^  Cockshott  v.  Bennett,  2  Term  R.  763;  Leicester  v.  Rose, 
4  East,  373.  The  illegality  of  the  consideration  upon  well-settled  prin- 
ciples Avould  be  a  good  defense.  The  plaintiff,  although  he  was 
cognizant  of  the  fraud,  and  an  active  participator  in  it,  would  never- 
theless be  allowed  to  allege  the  fraud  to  defeat  the  action,  not,  it  is 
true,  out  of  any  tenderness  for  him,  but  because  courts  do  not  sit  to 
give  relief  by  way  of  enforcing  illegal  contracts,  on  the  application 
of  a  party  to  the  illegality.  But  if  he  had  voluntarily  paid  the  note, 
he  could  not,  according  to  the^eneral  principle  applicable  to  executed 
contracts  void  for  illegality^ have  maintained  an  action  to  recoverlTacIc 
the-money  paid.  The  same  rule  which  would  protect  him  in  an  action 
to  enforce  the  note,  protects  the  defendants  in  resisting  an  action  to 
recover  back  the  money  paid  upon  it.     Nellis  v.  Clark,  4  Hill,  429. 


164  SOLINGER  V.  EAKLE.  [BOOK    II. 

It  is  claimed  that  the  general  rule  that  a  party  to  an  illegal 
contract  cannot  recover  back  money  paid  upon  it  does  not  apply  to 
the  case  of  money  paid  by  a  debtor,  or  in  his  behalf,  in  pursuance  of 
a  secret  agreement,  exacted  by  a  creditor  in  fraud  of  the  composition, 
and  the  cases  of  S.nith  v.  Bromley,  2  Doug.  696;  Smith  v.  Cuff,  6 
M.  &  S.  160  and  Atkinson  v.  Denby,  7  H.  &  N.  934  are  relied  upon 
to  sustain  this  claim.  In  Smith  v.  Bromley  the  defendant,  being  the 
chief  creditor  of  a  bankrupt,  took  out  a  commission  against  him,  but 
afterward  finding  no  dividend  likely  to  be  made,  refused  to  sign  the 
certificate  unless  he  was  paid  part  of  his  debt,  and  the  plaintiff,  who 
was  the  bankrupt's  sister,  having  paid  the  sum  exacted,  brought  her 
action  to  recover  back  the  money  paid,  and  the  action  was  sustained. 
Lord  Mansfield  in  his  judgment  referred  to  the  statute  (5  Geo.  11, 
chap.  30,  §  11),  which  avoids  all  contracts  made  to  induce  a  creditor 
to  sign  the  certificate  of  the  bankrupt,  and  said :  "The  present  is  a 
case  of  a  transgression  of  a  law  made  to  prevent  oppression,  either 
on  the  bankrupt  or  his  family,  and  the  plaintiff  is  in  the  case  of  a 
person  oppressed,  from  whom  money  has  been  extorted  and  advantage 
taken  of  her  situation  and  concern  for  her  brother."  And  again :  "If 
any  near  relation  is  induced  to  pay  the  money  for  the  bankrupt,  it  is 
taking  an  unfair  advantage  and  torturing  the  compassion  of  his 
family."  In  Howson  v.  Hancock,  8  Term  R.  575,  Lord  Kenyon  said 
that  Smith  v.  Bromley  was  decided  on  the  ground  that  the  money 
had  been  paid  by  a  species  of  duress  and  oppression,  and  the  parties 
were  not  in  pari  delicto,  and  this  remark  is  fully  sustained  by  refer- 
ence to  Lord  Mansfield's  judgment.  Smith  v.  Cuff  was  an  action 
brought  to  recover  money  paid  by  the  plaintiff  to  take  up  his  note 
given  to  the  defendant,  for  the  balance  of  a  debt  owing  by  the  plaintiff, 
which  was  exacted  by  the  latter  as  a  condition  of  his  signing  with  the 
other  creditors  a  composition.  The  defendant  negotiated  the  note 
and  the  plaintiff  was  compelled  to  pay  it.  The  plaintiff  recovered. 
Lord  Ellenborough  said:  "This  is  not  a  case  of  par  delictum;  it  is 
oppression  on  the  one  side  and  submission  on  the  other;  it  never  can 
be  predicated  as  par  delictum  where  one  holds  the  rod  and  the  other 
bows  to  it."  Atkinson  v.  Denby  was  the  case  of  money  paid  directly 
by  the  debtor  to  the  creditor.  The  action  was  sustained  on  the  author- 
ity of  Smith  V.  Bromley  and  Smith  v.  Cuff. 

It  is  somewhat  difficult  to  understand  how  a  debtor  who  simply 
pays  his  debts  in  full  can  be  considered  the  victim  of  oppression  of 
extortion  because  such  payment  is  exacted  by  the  creditor  as  a  condi- 
tion of  his  signing  a  compromise,  or  to  see  how  both  the  debtor  and 
creditor  are  not  in  pari  delicto.  (See  remark  of  Parke,  B.,  in  Higgins 
V.  Pitt,  4  Exch.  312.)  But  the  cfls.es  reierred  to  go  jio  further  than 
to  rhold—th*t  the^  debtor- hims©ll^  ^r  .a -near  lelatisje.. who__  o^ut_j)f 
CQjftpas&i^n  for  him  pays  money  ^uppn  the  exaction  of  the  creditor, 
as   a  ^condition  of   his    signing  a^  composition,"^naynBe~lregarded 


CHAP.    I.]  SOLINGER  V.  EARLE.  165 

as  having  paid  under  duress  and  as  not  equally  criminal  with  the 
creditor. 

These  decisions  cannot  be  upheld  on  the  ground  simply  that  such 
payment  is  against  public  policy.  Doubtless  the  rule  declared  in 
these  cases  tends  to  discourage  fraudulent  transactions  of  this  kind, 
but  this  is  no  legal  ground  for  allowing  one  wrong-doer  to  recover 
back  money  paid  to  anotlier  in  pursuance  of  an  agreement,  illegal  as 
against  public  policy.  It  was  conceded  by  Lord  Mansfield,  in  Smith 
V.  Bromley,  that  when  both  parties  are  equally  criminal  against  the 
general  laws  of  public  policy,  the  rule  is  potior  est  conditio  defend- 
entis,  and  Lord  Kenyon^  in  Howson  v.  Hancock,  said  that  there  is  no 
case  where  money  has  been  actually  paid  by  one  of  two  T)arties  to  the 
other  upon  an  illegal  contract  both  being  particeps  crimmis,  an  action 
has  been  maintained  to  recover  it  back. 

It  is  laid  down  in  Cro.  Jac.  187,  that  "a  man  shall  not  avoid  his 
d£ed  by  duress  of  a  stranger,  for  it  hath  been  held  that  none  shall 
avoid  his  own  bond~Tor  the Imprlsonment^ox  danger  of -an.yLjme_than 
hmTsctt'ontv.'^'"  And  in  Robinson  v.  Gould,  11  Gush.  57,  the  rule  was 
applied  wliere  a  surety  sought  to  plead  his  own  coercion  as  growing 
out  of  the  fact 'that  his  principal  was  suffering  illegal  imprisonment 
as  a  defense  to  an  action  brought  upon  the  obligation  of  the  surety 
given  to  secure  his  principal's  release.  But  the  rule  in  Gro.  Jac.  has 
been  modified  so  as  to  allow  a  father  to  plead  the  duress  of  a  child, 
or  a  husljand  the  duress  of  his  wife,  or  a  child  the  duress  of  the  parent. 
Wayne  v.  Sands,  1  Freeman,  351;  Bayley  v.  Glare,  2  Browne,  276; 
1  KoU.  Abr.  687 ;  Jacob's  Law  Die,  "Duress." 

We_see  no  grou,nd_upoBr- which  it  cnn  be  hpld_JjiRMji^plRintiff  in 
this  case  was  not  in  par  delictum  in  the  transaction  with  the  def end- 
4nfs7  So  far  as  the  complaint  shows  he  ^ttas-_a_.volunteer  in  entering 
intonie  fraudulent  agreement—  It  is  not  even  alleged  that  he  acted 
at  the  request  of  the  debtor.  Andjn  respect  to  the  claim  of  duress, 
upon  which  Smith  v.  Bromley  was  decided,  we  are  of  opinion  that 
the  doctrine  of  that  and  the  subsequent  cases  referred  to  can  only  be 
asserted  in  belralf  0'f~tlie  deblui  ]iIm.sclf7"'ar'of~a:~WTfg  or  husbaiiH.  or 
Hgar_relative  of  the  blood  of  the  debtor,  who  intervenes  in^his  behalf, 
and  that  a  person  in  the  situation  of  the  plaintiff,  remotely  related  by 
marriage,  with  a  debtor,  wlio  pays  money  to  a  creditor  to  induce  him 
to  sign  a  composition,  cannot  be  deemed  to  have  paid  under  duress, 
by  reason  simply  of  that  relationship,  or  of  the  interest  which  he  might 
naturally  take  in  his  relative's  affairs. 

The  plaintiff  cannot  complain  because  the  defendants  negotiated  the 
note,  so  as  to  shut  out  the  defence,  wliieh  he  would  have  liad  to  it  in  the 
hands  of  the  defendants.  The  negotiation  of  the  note  was  contem- 
plated when  it  was  given,  as  the  words  of  negotiability  show.  It  is 
possible  that  the  plaintiff,  while  the  note  was  held  by  the  defendants, 
might  have  maintained  an  action  to  restrain  the  transfer,  and  to 


166  DAIMOUTH   V.    BENNETT.  [dOOK   II. 

compel  its  cancellation.  Jackson  v.  Mitchell,  13  Yes.  581.  But  it  is 
unnecessary  to  determine  that  question  in  this  case.  The  plaintiff 
having  paid  the  note,  although  under  the  coercion  resulting  from  the 
transfer,  the  law  leaves  him  where  the  transaction  has  left  him. 

The  judgment  should  be  affirmed. 

All  concur. 

Judgment  affirmed. 


DAIMOUTH  V.  BENNETT. 

Supreme  Court  of  New  York,  1853. 

[15  Barhour,  541.] 

This  action  was  originally  brought  in  a  justice's  court.  The 
plaintiff  alleged  in  his  complaint  that  the  defendant  was  justly  in- 
debted to  him  in  the  sum  of  thirty  dollars,  for  money  had  and 
receive4  by-the  defendant  to  the  plaintiff's  use.  The  answer  deaied 
the  indebtedness,  and  set  up  matters  of  defence  upon  the  merits.  The 
justice  rendered  judgment  in  favor  of  the  phiintiff,  for  the  amount 
claimed,  with  costs.  This  judgment  was  affirmed  by  the  county 
court.  The  facts  of  the  case  are  as  follows :  The  plaintiff's  son  WilHam 
was  charged  by  the  defendant  with  liaving  passatLto  hiin  al:en  dojilar 
counterfeit  or  altered  bank_notej  a  warrant  had  been  issued  against 
him,,  and  he  hadjjgen  _arrested  on  said  j^liarge.  ^Yhile  he  was  under 
such  arrest,  the.  parties  to  this  action  made  "an  agreement,  by  which 
the^j)laintiff  promised  to  pay  and  did  pay  the"  defendant  thirty 
dollars^  to  settle~tTre  criminal  prosecution  against  the  plaintiff's  son, 
on  said  cKarge.  Tlie"defendant7Tli~cunsTde'ration  thereof.  'agreeTT  to 
let  the  prisoner  go  and  not  to  prosecute  him  further  on  said  charge, 
and  he  was  accordingly  discharged.  Prior  to  commencing  this  action, 
Ihe  plaintiff  called  on  the  defendant  and  demanded  the  repayment  of 
the  thirty  dolhirs.  It  also  appeared  from  the  testimony  of  the  plain- 
tiff's son  William,  that  he  never  passH  Ih^  hill  ixt-JE^T^^j^mLint ; 
l^eitherjiadjiejpasscd  any  bill  to  hi m,.  prepaid  him  any  money  at  any 
\Sm9.  prior  to  said  complaint.  There  was  no  conflict  of  evidence  in  the 
case.  When  the  plaintiff  closed  his  proof,  the  defendant  moved  for  a 
nonsuit,  on  the  ground  that  the  plaintiff  had  failed  to  make  out  a  legal 
cause  of  action,  which  was  denied. 

By  the  Court,  Crippex,  P.  J.  This  case  presents  the  single  point, 
whetlicr  ffr^ffoj^  p^''"*  "P^^  the  pnrpnsn  of  sottling  or  pompoiirnlino-  a 
supposed  felony  can  be  recovered  back  by  tbe-party  paying  it.  It  was 
iEsisted  by  the  plaintiff's  counsel  that  there  is  no  statute,  or  principle 
of  the  common  law,  declaring  the  payment  of  money  to  compound  a 


CHAP.    I.]  DAIMOUTH    V.    BENNETT.  167 

felony  a  crime,  in  the  party  thus  paying  the  money;  that  it  is  the 
taking  or  receiving  of  the  money,  and  not  the  payment  of  it,  that 
constitutes  the  offence.  It  is  true  that  the  statute  only  declares  the 
party  guilty  of  a  crime,  who  knowing  of  the  actual  commission  of  a 
felony,  shall  take  any  money  or  property  of  another,  upon  an  agree- 
ment or  undertaking  to  compound  or  conceal  such  felony  or  crime, 
or  to  abstain  from  any  prosecution  thereof.  2  R.  S.  -ith  ed.  8871,  §  18, 
also  page  875,  §  13. 

Theoffence  of  compounding  a  crime  created  by  statute,  is  undoubt- 
_edly  confined  to  the  party  receiving  the  money  or  property,  and  does 
not  extehd~tD  the  party _pajiTrg:^it." "This^pDsitioh  of  the  plaintiff's 
counsel,  however,  falls  far  short  of  reaching  the  whole  difficulty  in  his 
case.  Another  important  principle  is  involved,  which  to  my  mind 
is  a  conclusive  answer  to  this  action.  The  contract  made  between 
the  parties,  and  the  payment  of  the  money'under  it,  was  immoral^and 
illegal^  'I'iie^fatute  nbove  cited  declares  the  party  receiving  the  money 
under  such  circumstances  a  criminal.  The  common  law  declares  all 
contracts  to  do  acts  that  are  indictable  or  punishable  criminally,  to 
be  illegal  and  void.  It  is  a  fundamental  rule  of  the  common  law, 
that  whenever  a  contract  is  illegal  as  against  morality  or  public 
policy,  neither  j.  emir t  of  law  "nor  a  court  of  equity  will  interpose  to 
granFxeliif  to  the  parties  thereto.  It  is  manifest  that  the  contract 
under  which  the  plaintiff  paid  his  money  to  the  defendant,  was  malum 
in  se,  involving  criminality  and  moral  turpitude;  it  rendered  the 
defendant  liable  to  indictment  and  criminal  punishment.  If  a  con- 
tract be  evil  in  itself,  involving  criminality  and  moral  turpitude, 
neither  party  to  such  contract  can  have  any  remedy  against  the  other ; 
nor  can  money  paid  upon  such  contract  be  reclaimed  by  law  or  in 
equity.  Story  on  Cont.  §§  489,  490.  The  same  author  also  lays  down 
the  rule  of  law,  that  if  a  sum  of  money  be  paid  by  way  of  compounding 
a  felony,  it  cannot  be  recovered  back,  on  the  refusal  of  the  other 
pnrty  to  perform  his  part  of  the  contract;  nor  can  an  action  be  main- 
tained to  enforce  the  performance  of  such  contract.  If  the  money 
cannot  be  recovered  back  for  a  refusal  of  the  party  receiving  it  to 
perform  his  part  of  the  agreement,  it  would  seem  very  clearly  to 
follow,  that  where  the  contract  has  been  fully  performed  as  agreed 
upon  between  the  parties,  no  action  can  be  maintained  to  recover  back 
the  money.  No  proof  was  given  on  the  trial  that  the  defendant  did 
not  keep  his  agreement  with  the  plaintiff.  It  appeared  that  nothing 
further  was  done  with  the  criminal  prosecution  against  the  plaintiff's 
son ;  the  payment  of  the  money  by  the  plaintiff  to  the  defendant,  put 
an  end  to  the  whole  matter;  the  strong  arm  of  the  law  was  paralyzed 
thereby,  and  the  plaintiff's  son  was  discharged  from  the  arrest  on  the 
warrant. 

Where   a   contract  is   mahim    prohibitum — merely  evil   because   it 
is  prohibited  by  statute,  and  does  not  involve  any  moral  turpitude  or 


1G8  DAIMOUTH    V.    BEXNETT.  [bOOK   II. 

criminality — one  party  may  have  a  remedy  against  the  other,  unless 
they  are  in  pari  delicto.  But  no  relief  will  he  granted  even  in  such  a 
case  if  the  parties  are  both  involved  in  moral  guilt.  Agreements  to  do 
acts  which  are  indictable  or  punishable  criminally,  or  to  conceal  or 
compound  such  acts ;  or  to  suppress  evidence  in  a  criminal  prosecution, 
are  utterly  void.  Story  on  Cont.  §  569.  Also  all  agreements  which 
contravene  public  policy  are  void,  whether  they  be  in  violation  of  law 
or  morals,  or  obstruct  the  prospective  objects  flowing  from  some  posi- 
tive legal  injunction.     Story  on  Cont.  §  545. 

The  money  paid  by  the  plaintiff  to  the  defendant  was  intended  to 
obstruct,  and  as  the  proof  shows,  did  in  fact  obstruct  and  put  an  end 
to  the  prosecution  of  the  plaintiff's  son,  who  had  been  accused  and 
even  arrested  for  a  high  crime.  The  plaintiff  was  a  party  to  the 
agreement;  he  paid  the  money  to  the  defendant;  he_was  a  particeps 
criminis  with  the  defendant,  connected  with  him  in  committing  an'act 
declared  by  statute  to  be  criminal,  and  which  subjected  the  defendant, 
if  not  the  plaintiff,  to  criminal  punishment. 

Whenever  a  contract  is  forbidden  by  the  common  law  or  by  statute, 
no  court  will  lend  its  aid  to  give  it  effect.  Chitty  on  Cont.  570.  The 
same  author  also  says  that  an  agreement  for  suppressing  evidence,  or 
stifling  or  compounding  a  criminal  prosecution,  or  proceeding  for  a 
felony  or  for  a  misdemeanor  of  a  puhlic  nature,  is  void.  Chitty  on 
Cont.  583.  Itmatters  not  whether  the  plaintiff's  son  was  guilty  or 
innoceni„of  tbe  charge  madeagainst  him  by  the  defendant;  Tie  had 
been  arrested  on  a  criminal  warrant,  charging  him  witn  a  felony; 
while  thus  a  prisoner  the  plaintiff  compounded  the  offence  and  stifled 
the  prosecution,  by  the  payment  to  the  defendant  of  the  money  now 
sought  to  be  recovered  back  in  this  action.  It  was  undoubtedly 
immoral,  nay,  criminal  in  the  defendant  to  take  the  plaintiff's  money 
under  the  agreement  upon  which  it  was  paid  to  him;  this,  however, 
furnishes  no  legal  ground  to  the  plaintiff  for  recovering  back  the 
money.  He  is  too  deeply  implicated  in  the  wrong  committed,  by 
compounding  the  alleged  felony,  to  command  the  aid  of  the  law  and 
of  the  courts,  in  restoring  him  to  what  he  has  wrongfully  and  foolishly 
paid  to  the  defendant.  There  were  some  cases  at  an  early  day  which 
seemed  to  hold  the  doctrine  that  where  a  party  paid  money  upon 
an  illegal  transaction,  he  might  recover  it  back  again  in  an  action  for 
money  had  and  received.  But  it  has  been  holden  in  numerous  cases, 
both  in  l*]ngland  and  in  this  country,  that  in  cases  where  money  has 
been  paid  upon  a  consideration  like  that  established  by  the  proof  in 
this  case,  it  cannot  be  recovered  back  in  an  action  for  money  had  and 
received.  In  the  cases  of  Smith  v.  Bromley,  Doug.  HOG,  and  Brown- 
ing V.  Morris,  Cowp.  790,  Lord  Mansfield  decided  that  where  certain 
acts  were  declared  unlawful  by  statute,  intended  to  protect  the  unwary 
and  the  ignorant  from  the  oppression  and  extortion  of  the  more 
designing  and  cunning,  there,  although  both  parties  were  guilty  of 


CHAP.    I.]  DAIMOUTH    V.    BENNETT.  169 

violating  the  law,  yet  they  are  not  equally  guilty;  and  in  such  cases 
the  money  might  be  recovered  back  by  the  party  from  whom  it  had 
been  extorted,  as  in  case  of  taking  usury,  &c.  The  learned  judge  also 
says  that  these  cases  are  distinguishable  from  those  which  have  held 
that  money  })aid  on  account  of  the  immorality  of  the  consideration, 
involving  moral  turpitude,  or  hostile  to  public  policy,  cannot  be 
recovered  back.  There  are  many  cases  which  maintain  the  doctrine, 
and  such  no  doubt  is  the  settled  law,  that  where  a  contract  is  made 
having  for  its  ultimate  purpose  and  intent,  to  aid  in  violating  a 
positive  law  or  principle  of  pul)lic  policy,  or  to  commit  a  breach  of 
good  morals,  the  courts  will  not  assist  in  enforcing  it,  whatever  may 
seem  to  be  the  justice  of  it  as  between  the  parties.  In  such  a  case  the 
courts  treat  both  parties  as  having  trodden  upon  forbidden  ground, 
equally  in  the  wrong,  and  as  being  unworthy  alike  to  ask  for  or 
receive  their  aid.  In  this  case  the  parties  deliberately  agreed  to  violate 
the  laws  of  the  land;  the  plaintiff  by  paying  and  the  defendant  by 
receiving  the  sum  of  thirty  dollars  to  compound  an  alleged  felony ;  to 
stifle  and  discontinue  a  prosecution  already  commenced  against  the 
accused,  for  a  high  crime.  A  party  who  thus  illegally  and  improp- 
erly pays  away  his  money,  and  afterwards  repents  of  his  folly,  and 
attempts  by  an.  action  to  recover  it  back,  cannot  receive  the  aid  of  a 
court  of  justice  in  such  attempt. 

I  have  come  to  the  conclusion,  from  a  careful  examination  of  this 
case,  that  the  plaintiff  fgilod  i^i  PstghUghing  f\  1egal_caiise  of  action 
against  the  defendant.  The  judgment  of  the  justice^^ourt  and  of 
the  county  court  musf"  be  reversed,  with  costs  of  the  appeal  in  the 
county  court  and  in  this  court. 

[Otsego  General  Term,  July  12,  1853.  CuirrEN,  Shankland 
and  Gray,  Justices.]^ 

^Accord:    Haynes  v.  Rudd   (1886)   102  N.  Y.  372  and  the  authorities  cited. 

In  the  absence  of  a  statute  permitting  a  recovery,  it  is  clear  on  principle 
for  the  reasons  given  in  Daimouth  v.  Bennett,  that  no  recovery  should  be  had; 
it  seems  equally  clear  that  no  recovery  should  be  allowed,  in  the  absence  of 
a  statute,  on  any  unlawful  executed  contract  when  the  parties  stand  in  pari 
delicto,  for  in  such  cases  the  court  should  leave  the  parties  where  they  have 
placed  themselves,  rendering  aid  to  neither  of  the  delinquents.  If,  however, 
the  contract  is  exccutoiy,  the  court  might  well  leave  the  parties  to  any  extra- 
judicial remedies  they  may  have.  But  suppose  that  the  performance 
of  the  contract  or  agreement  is  secured  in  any  way,  as  by  a  mortgage.  In 
such  a  case,  the  illegality  of  the  original  consideration  should  be  a  good 
defence  to  foreclosure,  but  in  the  meantime  the  very  existence  of  the  mort- 
gage would  be  a  cloud  on  the  mortgagor's  title.  To  grant  affirmative  relief  to 
the  mortgagor  by  a  bill  in  oqiiily  for  the  cancellation  or  delivering  up  of  the 
mortgage  instruniont  would  r('li(\('  cue  ])arly  at  the  expense  of  the  other.  A 
failure  to  do  so  would  indirectly  tend  to  enforce  the  agreement;  but  the  wisest 
course  is,  perhaps,  to  refuse  ailirmative  relief  in  any  such  a  case.  The  follow- 
ing cases   indicate   the   various   attitudes  of  the  courts  on  questions  of  this 


170  LINDON  V.   HOOPER.  [BOOK  II. 

ASTLEY  V.  EEYNOLDS. 

King's  Bench,  1732. 

[2  Strange,  915.] 

In  an  action  for  money  had  and  received  to  the  plaintiff's  use,  the 
case  reserved  for  the  consideration  of  the  court  was,  that  above  three 
years  ago,  the  plaintiff  pawned  plate  to  the  defendant  for  £20  and  at 
the  three  years'  end  came  to  redeem  it,  and  the  defendant  insisted  to 
have  £10  for  the  interest  of  it,  and  the  plaintiff  tendered  him  £4, 
knowing  £4  to  be  more  than  legal  interest.  That  the  defendant 
refusing  to  take  it,  they  parted;  and  at  some  months'  distance,  the 
plaintiff  came  and  made  a  second  tender  of  the  £4,  but  the  defendant 
still  insisting  upon  £10  the  plaintiff  paid  it  and  had  his  goods,  and 
now  brings  this  action  for  the  surplus  beyond  legal  interest. 

Per  curiam.  The  cases  of  payments  by  mistake  or  deceit  are  not  to 
be  disputed;  but  this  case  is  neither,  for  the  plaintiff  knew  what  he 
did,  in  that  lies  the  strength  of  the  objection ;  but  we  do  not  think  the 
tender  of  the  £4  will  hurt  him,  for  a  man  may  tender  too  much, 
though  a  tender  of  too  little  is  bad ;  and  where  a  man  does  not  know 
exactly  what  is  due,  he  must  at  his  peril  take  care  to  tender  enough. 
^Ye  think  also,  that  this  is  a  payment  by  compulsion;  the  plaintiff 
might  have  such  an  immediate  want  of  his  goods  that  an  action  of 
trover  would  not  do  his  business :  where  the  rule  volenti  non  fit  injuria 
is  applied  it  must  be  where  the  party  had  his  freedom  of  exercising  his 
will,  which  this  man  had  not;  we  must  take  it  he  paid  the  money 
relying  on  his  legal  remedy  to  get  it  back  again. 

The  plaintiff  had  judgment;  and  the  defendant  dying  pending  the 
argument,  judgment  was  ordered  to  be  entered  nunc  pro  tunc. 


LINDON  );.  HOOPER. 

King's  Bench,  1776. 

[Cowper,  414.] 

Upon  a  rule  to  show  cause  why  a  new  trial  should  not  be  granted 
in  this  case,  Mr.  Justice  Ashhurst  read  his  report  as  follows  :  This  was 
an  action  for  money  had  and  received  brought  by  the  plaintiff  against 

nature:  Raguet  v.  Roll  (1835-6)  7  Oh.  pt.  1,  76;  pt.  2,  70;  Williams  v.  Engel- 
brecht  (1881)  37  Oh.  St.  383;  Cowles  v.  Raguet  (1846)  11  Oh.  38;  Pearce  v. 
Wilson  (1885)  111  Pa.  St.  14;  Atwood  v.  Fisk  (1869)  101  Mass.  363;  Got- 
walt  V.  Neal  (1806)  25  Md.  434.— Ed. 


CHAP.    I.]  LIXDOX    V.   HOOPER.  171 

the  defendant  Hooper,  who  had  distrained  the  plaintiff's  cattle.  The 
plaintiff  insisted  he  had  a  right  of  common,  and  demanded  his  cattle 
to  be  restored,  which  the  defendant  refused  to  do,  unless  the  plaintiff 
would  pay  him  20s.  for  the  damage  done.  Upon  this,  the  plaintiff 
paid  the  money  in  dispute  for  the  release  of  his  cattle ;  and  the  action 
is  brought  for  that  money.  At  the  trial  the  question  was,  whether 
the  plaintiff  was  entitled  to  recover  back  the  money  so  paid,  by  this 
species  of  action?  j\Iy  opinion  was,  that  he  could  not;  for  it  would 
be  extremely  inconvenient  and  hard  if  a  defendant  should  upon  his 
parol  be  obliged  to  come  and  defend  himself  against  any  right  that 
a  plaintiff  might  set  up,  without  giving  him  notice;  and  accordingly 
the  plaintiff  was  nonsuited. 

Mr.  Mansfield  showed  cause. 

Mr.  Morris  and  Mr.  BuIIer,  contra. 

Lord  Mansfield  now  stated  the  case  from  the  report  of  l\Ir.  Justice 
AsHHURST,  from  which  I  collected  this  additional  circumstance  not 
before  mentioned;  namely,  that  the  defendant  agreed  to  return  the 
money  if  the  plaintiff  should  make  out  his  right;  and  then  his  lordship 
proceeded  to  deliver  the  opinion  of  the  court  as  follows : — 

The  particular  circumstances  of  a  promise  or  agreement  to  return 
the  money,  if  the  plaintiff  should  make  out  his  right,  do  not  dis- 
tinguish this  case  from  the  general  question :  they  relate  to  an  amicable 
settlement  which  never  took  place. 

The  question  then  is  general :  Whether  the  proprietor  of  cattle  dis- 
trained, doing  damage,  who  has  paid  money  to  have  his  cattle  delivered 
to  him,  can  bring  an  action  for  that  money  as  had  and  received  to 
his  use? 

Though,  after  the  cause  is  brought  before  the  jury,  an  objection  to 
turn  the  plaintiff  round,  if  the  merits  can  be  fully  and  fairly  tried 
in  the  action  brought,  is  unfavorable;  yet,  if  founded  in  law,  it  must 
prevail.  We  were  extremely  loath  to  allow  it  without  full  consider- 
ation. 

The  present  case  is  singular,  and  depends  upon  a  peculiar  system  of 
strict  positive  law. 

Distraining  cattle  doing  damage  is  a  summary  execution  in  the  first 
instance.  The  distrainer  must  take  care  to  be  formally  right ;  he  must 
seize  them  in  the  act ;  upon  the  spot ;  for  if  they  escape,  or  are  driven 
out  of  the  land,  though  after  view,  he  cannot  distrain  them.  He  must 
observe  a  number  of  rules  in  relation  to  the  impounding  and  manner 
of  treating  the  distress. 

The  law  has  provided  two  precise  remedies  for  the  proprietor  of 
cattle  which  happened  to  be  impounded. 

1st,  He  may  replevy;  and,  if  he  does,  upon  tlie  avowry,  he  must 
specially  set  out  a  right  of  common,  or  some  other  title,  as  a  justifica- 
tion of  the  cattle  being  where  they  were  taken.    Or, 

2dly,  If  he  does  not  choose  to  replevy,  but  is  desirous  to  have  his 


172  LINDON   V.   HOOPER.  [BOOK    II. 

cattle  immediately  re-delivered,  he  may  make  amends,  and  then  bring 
an  action  of  trespass  for  taking  his  cattle;  and  particularly  charge 
the  money  so  paid  by  way  of  amends  as  an  aggravation  of  the  damage 
occasioned  by  the  trespass.  If  to  such  an  action  the  distrainer  pleads 
that  he  took  them  doing  damage,  the  plaintiff  must  specially  reply 
the  right  or  title  which  he  alleges  the  cattle  had  to  be  there. 

If  instead  of  an  action  of  trespass,  an  action  to  recover  back  the 
money  so  paid  by  way  of  amends  might  be  brought  at  the  election  of 
the  plaintiff,  the  defendant  would  be  laid  under  a  great  difficulty.  He 
might  be  surprised  at  the  trial ;  he  could  not  be  prepared  to  make  his 
defence;  he  could  not  tell  what  sort  of  right  of  common  or  other 
justification  the  plaintiff  might  set  up.  The  plaintiff  might  shift 
his  prescription  as  often  as  he  pleased;  or  he  might  rest  upon  objec- 
tions to  the  regularity  of  the  distress.  The  plaintiff  can  never  be 
suffered  to  elect  to  throw  such  a  difficulty  upon  his  adverse  party. 
Besides,  as  applied  to  the  subject-matter  of  this  question,  the  action 
for  money  had  and  received  could  never  answer  the  equitable  end  for 
which  it  was  invented  and  deserves  to  be  encouraged.  For  the  point 
to  be  tried  and  determined  in  this  action  is,  Whether  the  plaintiff's 
cattle  trespassed  upon  the  defendant's  land  ?  That  may  depend  upon 
the  plaintiff's  right,  or  the  defendant's  right,  or  the  fact  of  trespass- 
ing ;  or  it  may  depend  upon  mere  form.  If  the  distress  was  irregular, 
the  amends  must  be  recovered  back  again.  So  that,  allowing  the 
owner  of  the  cattle  to  substitute  this  remedy  in  lieu  of  an  action  of 
trespass  would,  as  between  the  parties,  be  unequal  and  unjust,  and 
upon  principles  of  policy  would  produce  inconvenience.  It  would 
break  in  upon  that  branch  of  the  common  and  statute  law  which  relates 
to  distresses.  It  would  create  inconvenience,  by  leaving  rights  of 
common  open  to  repeated  litigation,  and  by  depriving  posterity  of  the 
benefit  of  precise  judgments  upon  record. 

As  to  prescriptive  rights  of  common,  the  money  paid  by  way  of 
amends  is  a  special  damage;  and  is  always  so  alleged  in  the  declara- 
tion of  trespass,  which  in  every  view  is  the  action  peculiarly  proper 
for  this  kind  of  question. 

An  action  for  money  had  and  received  is  a  new  experiment.  No 
precedent  has  been  cited.  This  objection  alone  would  not  be  con- 
clusive; but  upon  principles  of  private  justice  and  public  convenience, 
we  think  the  method  of  proceeding  used  and  approved  for  ages,  in  the 
case  of  distresses,  ought  to  bo  ndhored  to. 

There  is  a  material  distinction  between  this  and  the  instances 
alluded  to  at  the  bar,  where  the  plaintiff  is  allowed  to  waive  the 
trespass,  and  bring  the  action  for  money  had  and  received.  In  those 
instances,  the  relief  is  more  favorable  to  the  defendant.  He  is  liable 
only  to  refund  what  he  has  actually  received,  contrary  to  conscience 
and  equity.  In  this,  informalities  in  taking  or  treating  the  distress 
would  avoid  the  amends,  though  the  defendant  had  a  right  to  distrain. 


CHAP.    I.]  LINDON  V.   HOOPER.  173 

But,  which  is  more  material,  in  those  instances,  the  plaintiff,  ])y  elect- 
ing this  mode  of  action,  eases  the  defendant  of  special  pleading,  and 
takes  the  risk  of  being  surprised  upon  himself.  In  this,  he  eases  him- 
self of  the  difficulty  and  precision  of  special  pleading,  and  the  burthen 
of  proof  consequent  thereupon,  and  exposes  the  defendant  to  uncer- 
tainty and  surprise. 

The  case  of  Feltham  v.  Terry,  Pasch.  13  Geo.  3,  B.  E.,  relied  on  in 
the  argument,  was  a  case  of  goods  taken  in  execution,  and  sold  under 
a  warrant  of  distress  upon  a  conviction.  The  conviction  was  quashed ; 
consequently  there  could  be  no  justification.  The  plaintiff,  by  bring- 
ing his  action  for  money  had  and  received,  could  only  recover  the 
money  for  which  the  goods  were  sold.  But,  if  trespass  had  been 
brought,  the  defendant  must  have  pleaded  specially,  and  the  plaintiff 
might  have  recovered  damages  far  beyond  the  money  actually  received 
from  the  sale  of  the  goods.  So,  where  goods  are  taken  in  execution 
which  are  not  the  property  of  the  persons  against  whom  execution  is 
taken  out;  the  owner  may  waive  the  trespass,  and  bring  his  action 
for  the  amount  of  the  money  which  the  goods  sold  for. 

We  think  this  case  not  within  the  reason  of  any,  in  which  hitherto 
the  plaintiff  has  been  allowed  to  waive  the  trespass,  and  bring  this 
action.  We  think,  to  allow  it  would  not  tend  to  the  furtherance  of 
liberal  justice,  but  would  be  a  prejudice  to  the  defendant,  and  in  a 
public  view  inconvenient.  Therefore,  we  agree  that  the  plaintiff  was 
rightly  nonsuited  at  the  trial. 

Per  Cur.  Rule  for  a  new  trial  discharged.^ 

'In  Gulliver  v.  Cosens  (1845)  1  C.  B.  788,  it  was  held  that  the  owner  can- 
not without  tendering  amends  recover,  in  a  count  for  money  had  and 
received,  an  excessive  sum  demanded  for  damage  where  cattle  are  distrained 
damage  feasant;  that  the  remedy  is  replevin  or  trespass,  if  sufficient  tender 
is  made  before  distress;  if  after  distress  (and  before  the  impounding)  the 
remedy  is  detinue.  In  the  course  of  his  judgment,  Tindal,  C.  J.,  said:  "This 
I  should  be  disposed  to  hold  upon  principle,  and  independently  of  the  authority 
of  Liiidon  v.  Hooper,  which  I  am  unable  to  get  over,  and  which  I  am  not 
aware  has  been  overruled.  .  .  .  The  cases  of  Knibbs  v.  Hall  (1794)  1  Esp.  84, 
and  Skeate  v.  Beals  (1840)  11  A.  &  E.  983,  follow  the  doctrine  of  Lindon  v. 
Hooper." 

And  see  Chase  v.  Dwinal  (1830)  7  Greenl.  134,  139;  Colwell  v.  Peden 
(1834)   3  Watts.  327,  for  an  explanation  of  the  principal  case. 

As  the  title  to  real  estate  cannot  be  tried  in  an  action  of  assumpsit.  King 
V.  Mason  (1806)  42  111.  223,  it  follows  that  if  the  title  to  land  be  not  involved, 
a  recovery  in  this  form  of  action  may  be  liad  as  in  Hills  i\  Street  (1828) 
5  Bing.  37;  Newsome  v.  Graham  (1829)   10  B.  &  C.  234.— Ed. 


174  IRVING  V.   WILSON.  [BOOK   II. 

lEVING  V.  WILSON. 
King's  Bench,  1791. 
[4  Term  Reports,  485.] 

This  was  an  action  on  the  case  to  recover  the  sum  of  £2  lis.  as 
money  had  and  received  by  the  defendants  to  the  plaintifE's  use.  At 
the  trial  at  the  last  Carlisle  assizes  before  Thomson,  Baron,  it 
appeared  that  the  defendants,  who  are  custom-house  officers,  had  seized 
some  hams  near  Carlisle,  which  the  plaintiff  was  sending  in  three 
several  carts  from  Scotland  to  Carlisle.  The  plaintiff  obtained  one 
permit  for  the  whole,  but  owing  to  some  accident  two  of  the  carts 
were  at  the  distance  of  two  miles  behind  the  other  when  the  defend- 
ants met  the  first  and  demanded  the  permit ;  the  driver  informed  them 
that  the  permit  was  with  the  other  carts,  which  came  up  in  an  hour 
and  a  half  afterwards,  before  the  first  reached  Carlisle,  but  not  till 
the  officer  after  waiting  some  time  without  seeing  the  other  carts  had 
made  the  seizure.  They  were  all  three  driven  to  the  custom-house  at 
Carlisle,  the  defendants  saying  they  could  not  release  them  unless  the 
collector  were  applied  to.  When  the  whole  was  explained  to  the  col- 
lector, he  said  he  would  have  no  concern  in  the  taking.  And  the 
defendants  then  refused  to  give  up  the  carts  with  the  cargoes,  unless 
the  plaintiff  would  give  them  £2  lis.;  which  he  accordingly  did.  It 
was  objected  on  the  part  of  the  defendants  that  the  plaintiff,  by  this 
transaction  with  revenue  officers,  had  incurred  a  penalty  of  £50,  and 
that  he  could  not  recover  back  the  money  which  he  had  paid  to  have 
the  goods,  which  had  been  seized,  returned  to  him;  and  the  plaintiff 
was  non-suited,  with  leave  to  move  to  set  that  non-suit  aside,  and  to 
enter  up  a  verdict  for  him,  if  this  Court  should  be  of  opinion  that 
the  plaintiff  could  maintain  this  action. 

A  rule  having  been  obtained  on  a  former  day  by  Law  to  shew  cause 
why  the  non-suit  should  not  be  aside. 

Lord  Kenyon,  Ch.  J.  The  revenue  laws  ought  not  to  be  made  the 
means  of  oppressing  the  subject.  H'ej:e;r-ac42eiTOifJiavingJi£^^ 
for  the  whole  quantity  of  goods,  and  which  was  with  the  other  cajts 
"Behind  at  the  time  of  the  seizure,  the  seizure  was  clearly  illggal.  The 
permit,  for  the  entire  quantity,  could  not  be  separated  and  dis- 
tributed to  each  of  the  carts.  And  therefore  whatever  ground  of  prob- 
ability there  was  for  stopping  the  first  cart,  yet  a:^tsijthe_mattei-jEa^ 
cleared  up,  there  was  no  pretence  for  makings  a  seizure;  and  it  was 
higlTty-rnrpropcr'Tirihe  officers  to  take  the  money.  If  goods  liable  to 
a  forfeiture  be  forfeited,  the  officer  is  to  seize  them  for  the  king ;  but  he 
is  not  to  be  permitted  to  abuse  the  duties  of  his  station,  and  to  make 
it  a  mode  of  extortion.  Her^  the  defendants  took  the  money  under 
circumstances,  which  could  by  no  possibility  justify  them;  and  tFere- 


CHAP.    I.]  GATES   V.   HUDSON.  175 

fom  this  could  not  be  called  a  voluntary  payment :  but  it  was  extorted 
from  the  plaintiff,  and  in  that  case  no  notice  to  the  defendants  was 
necessary. 

AsHHURST,  J.  I  agree  that  if-this  uioneyhad  been  |mid"a:y  a 'bribe, 
both  parties  would  have  been  in  pari  delicto,  and  the  plaintiff  would 
not  be  entitled  to  recover.  But  heFe"  the  pi  am  tiff  was  in  no  fault 
whatever;  this^moncy  was  not  paid  as  a  bribe  ;for_the  goods  were  not 
liable  to  seiziirfL-  Neither  vrasU  a  voluntary  payment;  forwEen~the 
defendants  had  stopped  the  goods,  the  plaintiff  was  in  their  power. 
The  defendants  acted  right  in  stopping  the  goods  at  first;  but  when 
the  permit  came  up,  there  was  no  pretence  to  detain  them ;  still  less 
to  take  the  money.  It_was  a  p&yment  by  coercion;  and  which  the 
plaintiff  may  recover  from  the  defendantslis  money  unconscfentiously 
received~by  tlieiiT 

Grose,  J.^  If  an  officer  seize  goods  as  forfeited,  he  does  it  colore 
officii:  but  if  he  takes  money  for  delivering  up  the  goods,  there  is  no 
pretence  to  say  that  that  is  done  colore  officii:  and  such  money  may 
be  recovered  back  again  in  an  action  of  this  kind. 

Eule  absolute.- 


OATES  V.  HUDSON". 
Court  of  Exchequer,  1851. 
"^  [6  Exchequer,  31G.^] 

Assumpsit  for  money  had  and  received. — Plea,  non  assumpsit. 

At  the  trial,  before  Cresswell,  J.,  at  the  last  York  Spring  Assizes, 
it  appeared,  that  a  Mrs.  Dungworth,  being  possessed  of  certain  free- 
hold property,  devised  the  same  to  the  plaintiff's  wife,  then  a  minor. 

^Absent,  Buller,  J. 

'Accord:  Ripley  v.  Gelston  (1812)  9  John.  201;  Clinton  v.  Strong,  id.  370; 
Chase  v.  Dwinal  (1830)  7  Greenl.  134;  Ogden  v.  Maxwell  (1855)  3  Blatch. 
319  (digesting  the  authorities)  ;  Hooper  v.  Mayor  (1887)  56  L.  J.  Q.  B.  457. 
And  so  in  cases  of  an  illegal  or  excessive  fee  exacted  by  sheriff  for  serving^  a 
Ayrit,^  Dew  v.  Parsons  (1819)  2  B.  &  Aid.  562;  an  illegal  sum  exacted  by 
authorities  for  a  license,  Morgan  v.  Palmer  (1824)  2  B.  &  C.  729;  and  so 
where  money  is  illegally  exacted  by  the  cusodian  of  documents  for  permission 
to  copy  the  same  in  a  case  where  the  law  onlj-  required  a  fee  for  a  certified 
copy,  Steele  v.  Williams  (1853)  8  Ex.  625.  And  on  this  subject  generally  see, 
especially  the  sound  and  Unanswerable  dissciittiTg  opinion  of  Story,  J^in-Cary 
V.  Curtis  (1_845)  3  How.  236,  252-259,  which  inllucnced  Congress,  then  in 
session,  to  repeal  the  obnoxious  statute  destroying  the  common-law  right  as 
appears  from  Arnson  v.  Murphy   (1883)    109  U.  S.  238.— Eo. 

'^This  case  is  likewise  reported  in  5  English  Law  and  Equity,  469,  with  an 
excellent  editorial  note. — Ed. 


176  GATES  V.   HUDSON.  [BOOK   II. 

Mrs.  Dungworth  resided  with  a  Mrs.  Hudson,  the  aunt  of  the  defend- 
ant; and  after  she  had  made  the  will  in  favour  of  the  plaintiff's  wife, 
she  delivered  to  Mrs.  Hudson  the  title  deeds  of  her  property,  telling 
her  to  keep  them,  as  she  should  destroy  her  will,  and  leave  all  her 
property  to  her.  In  consequence  of  this  assurance,  Mrs.  Hudson  had 
allowed  Mrs.  Dungworth  to  reside  with  her  until  her  death  in  1835, 
and  had  paid  the  expenses  of  medical  attendance  and  of  the  funeral. 
It  was  then  discovered  that  the  will  in  favour  of  the  plaintiff's  wife 
was  the  only  one  in  existence.  The  executors  of  Mrs.  Dungworth 
received  the  rents  of  the  land  during  the  minority  of  the  devisee,  but 
the  deeds  were  retained  by  the  defendant,  to  whom  Mrs.  Hudson  had 
delivered  them  as  her  attorney,  and  the  expenses  of  the  funeral,  &c., 
had  not  been  repaid  to  her.  The  plaintiff,  having  married  the  devisee 
under  Mrs.  Duckworth's  will,  made  inquiries  of  Mrs.  Hudson  respect- 
ing the  deeds,  when  she  said  that  she  would  give  no  information  unless 
she  was  paid  what  she  had  expended ;  and  she  ultimately  referred  the 
plaintiff  to  the  defendant  as  her  legal  adviser.  The  ^l_aintiff_af ter- 
wards  called  on  the  defendant,  and  asked  him  to  give  up  the  deeds, 
when^he  refused  to  do  so,  except  upon  payment  of  £63,  the  amount  of 
tl^e  expenses  incuTredJjy  Mrs:  HiidsiiLon^iccount-  of-  MTS;-Bunggorth. 
TliijjDiaintiff  at  first  objected,  to  pay  this  sum;  but  he  subsequently 
paid^itj,  and  obtained  the  deeds,  at  the  same  time  saying  to  the 
defendant,  "You  shall  hear  of  this  again_"  The  defendant  afterwards 
paTxTover  the  amount  to  Mrs.  Hudson.  It  was  objected  on  the  part 
of  the  defendant,  that  the  plaintiff  was  not  entitled  to  recover,  on  the 
grounds,  first,  that  the  defendant  acted  merely  as  the  attorney  of  Mrs. 
Hudson;  secondly,  that,  the  defendant  having  no  right  to  retain  the 
deeds,  this  was  a  voluntary  payment  by  the  plaintiff  in  his  own  wrong. 
The  learned  Judge  overruled  the  objections,  and  a  verdict  was  found 
for  the  plaintiff. 

Watson  now  moved  for  a  new  trial,  on  the  ground  of  misdirection. — 
He  argued,  first,  that  the  action  was  improperly  brought  against  the 
defendant,  who  had  merely  acted  as  the  attorney  and  agent  of  Mrs. 
Hudson;  secondly,  that  the  defendant  having  no  right  whatever  to 
retain  the  deeds,  the  money  was  paid  by  the  plaintiff  voluntarily  and 
in  his  own  wrong. 

Parke,  B. — There  ought  to  be  no  rule.  If  the  money  had  been 
paid  to  Mrs.  Hudson,  or  to  the  defendant  for  her,  voluntarily,  and 
in  order  to  satisfy  the  funeral  and  other  expenses,  it  could  not  have 
been  recovered  back;  in  fact,  however,  it  was  not  so  paid,  but  only 
for  the  purpose  of  getting  possession  of  the  deeds.  In  Atlee  v.  Back- 
house, 3  M.  &  W.  633,  it  is  correctly  laid  down,  that,  ia-nrder  to  avoid 
a  .contract  by  reason  of  duress,  it  must  be  duress  of  a  man'sj)erson, 
nAt^^rTTtir:goods.rt)ut^hat  ishere  a  sum  of  money  is  paid  simply"  to 
olitain.  possession  of  goods  which  arc  wrongfully  detained,  that  rim'  be 
recovered  backj.for  it  is  aot  a  voluntary  payment.     Pratt  v.  Tizard, 


CHAP.    I.]  TUTT    V.    IDE.  177 

5  B.  &  Ad.  808,  E.  C.  L.  R.  vol.  27,  is  an  authority  to  the  same  effect. 
Here  the  money  was  not  paid  to  the  defendant  in  his  eharacter_of 
agent,  so  as  to  prevent  the  plaintiff  from  having  a  remedy  against  him. 
Snowden  v.  Davis,  1  Taunt.  359,  decided,  that,  in  order  to  en^hte-an 
agent  to  set  up  the  defence  that  he  lias  paid  over  the  money,  it  is  neces- 
sary that  the  money  should  have  been  paid  to  the  agent  expressly  for 
the  use  of  the  person  to  whom  he  has  so  paid  it  over.  There  Mans- 
field, C.  J.,  points  out  the  distinction  between  such  a  case  and  where 
a  person  pays  money  under  compulsion  to  redeem  his  goods,  and  not 
with  intent  that  the  money  should  be  paid  over  to  any  one  in  particu- 
lar. So  that  the  present  case  does  not  fall  within  the  rule  as  to  pay- 
ment to  an  agent,  but  it  is  a  payment  under  a  species  of  duress,  and 
the  person  who  received  the  money  is  bound  to  pay  it  back. 
Pollock,  C.  B.,  Platt,  B.,  and  Martin,  B.,  concurred. 

Eule  refused.^ 


TUTT  V.  IDE. 

Circuit  Court  of  the  United  States,  1855. 

[3  Blatchford,  249.] 

Defendants  as  common  carriers  agreed  with  plaintiffs  to  receive 
at  Boston  and  carry  to  St.  Louis  1,216  cases  of  boots  and  shoes  at 
the  rate  of  $1.25  freight  per  hundred  pounds.  The  goods  were  carried 
as  per  agreement  to  St.  Louis,  but  the  defendants  refused  to  deliver 
them  to  the  plaintiffs  unless  the  plaintiffs  paid  the  sum  of  $2,202.57, 

'"Money  paid  to  obtainjthe  possession  of  goods  illegally  and  wrongfully 
detained,  may  be  recovered  back  in  assumpsit  for  money  had  and  received. 
Bates  V.  The  New  York  Ins.  Co.  3  Johnson's  Cases,  238;  Ripley  v.  Gelston, 
0  Johnson,  201 ;  Clinton  v.  Strong,  ih.  370;  Hearsey  v.  Pruyn,  7  id.  179;  Chase 
V.  Dwinal,  7  Greenleaf,  134;  Chase  v.  Taylor,  4  Harris  &  Johnson,  54;  Henry 
V.  Chester,  1,5  Vermont,  460;  IMarriott  v.  Brune,  0  Howard,  619;  Maxwell  v. 
Criswold,  10  id.  242;  Hendley  v.  Call,  30  Maine,  9;  Joyner  i'.  The  Third  School 
District,  3  dishing,  567.  Amljthis  rule  applies  to  a  payment  to  a  public  or 
private  officer  or  agent.  Bipley  v.  Gelston;  Frve  ?\  Lockwood,  4  Cowen.  454; 
unloss  it  is  made  for  the  use  of_the  principal,  and  paid  over  to  him  without 
notice  of  the  intention  to  reclaim  it. 

"It  has  been  said  that  where  a  restraint  is  imposed  in  good  faith,^  with_a 
view  to  enforcing  a  supposed  legal  right,  money  paid  to  remove  it  cannot 
be  recovered  back.  Lindon  v.  Hooper,  Cowper,  414;  Atlee  v.  Backhouse,  3~lM. 
&  W.  633,  6461  Colwell  r.  Pedon.  3  Watts,  327;  Webber  r.  Aldrich,  2  New 
Hampshire,  461  ;  but  in  these  cases,  the  goods  had  been  distrained  for  rent, 
and  were  within  the  rule,  that  a  payment  made  under  compulsion  of  legal 
process  cannot  be  disputed.    Newell  r.  ilarch,  8  Iredell.  441 :   unless  on  tUe 


178  TUTT    V.    IDE.  [book    II. 

being  $1,087.91  more  than  the  sum  for  which  the  defendants  had 
agreed  to  convey  and  deliver  the  goods.  To  obtain  possession  of  their 
goods  the  phiintilfs  paid  the  sum  demanded,  and  brought  suit  to 
recover  the  sum  paid  in  excess.  To  this  money  count  there  was  a 
general  demurrer  and  joinder.^ 

Hall,  J,  It  was  insisted  by  the  defendants,  upon  the  argument, 
that  the  plaintiffs  paid  the  excess  which  they  seek  to  recover  back, 
without  legal  coercion, — not  by  mistake,  but  with  a  full  knowledge  of 
the  facts;  and  that  the  payment  was  therefore  voluntary,  and  could 
not  be  recovered  back.  On  the  other  hand,  the  plaintiffs  insisted  that 
the  payment  was  compulsory,  and  that  they  were  entitled  to  recover 
back  the  excess,  beyond  the  sum  due  under  the  contract,  which  was 
paid  by  them  to  obtain  possession  of  their  goods. 

It  was  conceded  by  the  counsel  for  the  defendants,  that  the  case 
of  Astley  v.  Eoynolds,  2  Strange,  915,  was  in  point  as  an  authority 
for  the  plaintiffs;  but  he  insisted  that  that  case  had  been  overruled 
by  the  Courts  of  this  State,  and  that  the  rule  of  law  in  this  State  was 
well  established,  and  was  directly  opposed  to  the  doctrines  of  that 
case. 

The  earliest  case  cited  to  sustain  this  position  is  that  of  Hall  v. 
Shultz,  4  Johns.  240.  The  case  of  Astley  v.  Reynolds,  and  also  the 
case  of  Ivnibbs  v.  Hall,  1  Esp.  84,  in  which  the  principle  of  the  case 
of  Astley  v.  Eeynolds  was  said  to  have  been  overruled,  were  referred 
to  in  that  case.  But  Spencer,  J.,  in  delivering  the  opinion  of  the 
Court,  without  adverting  to  the  case  of  Bates  v.  The  New  York  Ins. 
Co.,  3  Johns.  Cas.  238,  which  will  be  hereafter  referred  to,  and  "with- 

gfouiid  of  a  mistake  of  facts.  Pool  v.  Allen,  7  Iredell,  120;  see  2  Smith  L.  C, 
4th  Am.  ed.,  338,  344." 

So  where  a  mortgagor  pays  the  moiitgage  debt  and  the  mortgagee  refuses 
to  deliver  the  title-deeds  except  upon  payment  of  an  unfounded  claim,  Wake- 
field V.  Xewbon  (1844)  6  Q.  B.  276;  or  where  a  mortgagee  of  land  threatens 
to  sell  in  foreclosure  under  a  power  of  sale  unless  an  exorbitant  sura  is  paid, 
Close  V.  Phipps  (1844)  7  M.  &  G.  580:  or  where  a  corporation  refuses  to 
make  a  transfer  of  stock  unless  the  assignee  of  the  stock  pays  a  debt  due 
from  plaintiffs'  assignor  to  the  corporation,  Bates  v.  N.  Y.  Ins.  Co.  (1802) 
3  Johns.  Cas.  238  (but  see  De  La  Cuesta  v.  Ins.  Co.  (1890)  136  Pa.  St.  02, 
contra)  ;  so  where  a  broker  in  possession  of  goods  distrained  for  rent  demands, 
as  a  condition  for  extension  of  time,  an  undertaking  to  pay  expenses  of  keeping 
a  man  in  possession  and  the  undertaking  is  given  and  enforced,  Hills  v.  Street 
(1828)  5  Bing.  37;  so  where  a  broker  in  possession  of  goods  refuses  to  deliver 
to  the  owner,  goods  unsold  unless  nil  commissions  for  goods  sold  as  well  as 
unsold  are  paid,  and  the  owner  theriMipon  jiays  the  entire  claim  under  protest, 
Briggs  V.  Boyd  (1874)  56  N.  Y.  28!):  so  where  executors  refused  to  deliver 
l)onds  unless  certain  commissions  (disallowed  by  the  court)  were  paid,  Scholey 
V.  Mumford  (1875)  60  N.  Y.  498,  501  (where  the  authorities  are  collected). 
And  see  Cobb  v.  Charter  (1805)  32  Conn.  358  (digesting  authorities). — Ed. 

'The  statement  of  the  case  is  slightly  abridged. — Ed. 


CHAP.    I.]  TUIT   V.    IDE.  179 

out  undertaking  to  pronounce  between  the  cases  cited,"  Astley  v. 
Reynolds  and  Knibbs  v.  Hall,  declared  that  the  case  then  before  him 
differed  materially  from  both.  In  the  case  then  under  consideration, 
the  defendants  had  purchased  the  lands  of  the  plaintiff  on  execution, 
under  a  verbal  agreement  to  convey  them  to  him  on  the  repayment  of 
tlie  amount  advanced,  with  interest,  and  a  reasonable  compensation  for 
the  defendants'  trouble.  Afterwards,  when  the  plaintiff  applied  to 
have  the  agreement  reduced  to  writing,  they  required  him  to  execute 
an  agreement  in  which  the  compensation  for  their  trouble  was  fixed 
at  $300,  which  was  deemed  extortionate  and  unjust.  The  agreement 
was  executed,  and  the  $300  subsequently  paid,  and  the  conveyance  to 
the  plaintiff  made;  and  he  then  brought  his  action  to  recover  back  the 
$300.  In  concluding  his  opinion,  Mr.  Justice  Spencer  said:  "On  the 
ground  that  there  existed  no  legal  right  on  the  part  of  the  plaintiff  to 
demand  or  enforce  a  conveyance,  that  he  must  be  considered  in  the 
light  of  any  other  purchaser,  and  that  the  defendants  might  make 
tlieir  own  terms,  and  that  the  plaintiff  has  voluntarily  and  with  his 
eyes  open,  fixed  the  compensation  claimed  by  the  defendants,  and  paid 
them  the  money,  he  can  have  no  claim  to  call  on  the  Court  to  aid  him 
in  getting  rid  of  what  he  conceives  an  unconscientious  advantage. 
But,  if  there  did  exist  a  legal  remedy  to  enforce  a  reconveyancer-fls  the 
measure  of  the  defendants'  claim  to  compensation  rested  in  arbitrary 
discrelion,  the  plaintiff,  by  voluntarily  acceding  to  the  terms  pro- 
posed by  the  defendants,  has  lost  any  right  to  call  on  a  jury  to  relTeve 
him  fronL.an  allowance  deliberately  fixed:1)y  Miiisetf.^  ~lt  is,  1  think, 
quite  clear  that  this  case  of  Hall  v.  Shultz  does  not  overrule  the  case 
of  Astley  v.  Reynolds,  or  the  case  of  Bates  v.  The  New  York  Ins.  Co., 
above  referred  to;  and  I  think  the  same  remark  applies  to  the  cases, 
cited  by  the  defendants'  counsel,  of  Ripley  v.  Gelston,  9  Johns.  201; 
Clarke  v.  Butcher,  9  Cowen,  681 ;  Supervisors  of  Onondaga  v.  Briggs, 
2  Denio,  39,  40;  Wyman  v.  Farnsworth,  3  Barb.  S.  C.  R.  371;  and 
Elliott  V.  Swartwout,  10  Peters,  137. 

The  manuscript  opinion  of  Mr.  Justice  Nelson,  in  the  case  of  Con- 
verse V.  Coit,  appears  to  favor,  if  it  does  not  directly  sanction,  the 
position  assumed  by  the  defendants.  But,  on  looking  into  the  bill  of 
exceptions  in  that  case,  it  appears  that  the  flour  on  which  the  excessive 
charges  of  freight  were  demanded  and  paid  had  been  delivered  two  or 
three  days  prior  to  such  payment;  and  that  there  was  no  formal 
demand  made  of  the  flour,  and  no  refusal  to  deliver  it  up,  and  no 
threat  made  of  detaining  the  flour  because  of  a  refusal  to  pay.  The 
question  now  raised  was  not  presented  in  that  case,  and,  therefore,  the 
decision  therein  is  not  an  autliority  for  the  position  assumed  by  the 
defendants  in  this  case. 

The  case  of  Astley  v.  Reynolds  was  decided  by  the  King's  Bench,  in 
Michaelmas  Term,  5  Geo.  2  (1732).  It  is  admitted  that,  if  that  case 
is  to  be  followed,  the  question  presented  by  the  demurrer  must  be 


180  TUTT    V.    IDE.  [book   II. 

decided  in  favor  of  the  plaintiffs.  But,  it  is  contended,  as  before 
stated,  that  Astley  v.  Keynolds  has  been  overruled  by  the  Supreme 
Court  of  this  State,  in  the  cases  before  cited.  Those  cases  have  been 
fully  considered,  and,  having  reached  the  conclusion  that  they  have  not 
expressly  overruled  the  case  in  2  Strange,  I  now  propose  to  refer  to 
other  cases  in  the  Courts  of  this  and  other  States  and  in  England, 
which  are  supposed  to  bear  directly  upon  this  question. 

In  Bates  v.  The  New  York  Ins.  Co.,  3  Johns.  Cas.  238,  decided 
in  1803,  the  plaintiff  had  purchased,  from  one  ISTorman  Butler,  fifty 
shares  of  the  stock  of  the  defendants,  subject  to  some  future  calls. 
Those  calls  were  paid  by  the  plaintiff,  and  he  became  entitled  to  a 
transfer  of  the  stock  upon  the  books  of  the  Company.  The  defend- 
ants refused  to  transfer  this  stock  to  the  plaintiff  until  the  plaintiff 
paid  a  debt  due  to  them  from  Butler,  the  original  owner  of  the  shares. 
This  the  plaintiff  paid.  He  afterwards  brought  his  action  to  recover 
it  back;  and  the  Court  held,  after  a  verdict  taken  subject  to  the 
opinion  of  the  Court  upon  the  facts  stated,  that  the  plaintiff  was  not 
liable  for  the  payment  of  $4G5  of  the  amount  paid  by  him  to  procure 
the  transfer,  and  that  he  was  therefore  entitled  to  recover  back  that 
amount,  in  an  action  for  money  had  and  received.  Thompson,  J., 
delivered  the  opinion  of  the  Court,  and  referred  with  approbation  to 
Astley  V.  Eeynolds,  and  to  Irving  v.  Wilson,  4  T.  E.  485,  and  also  to 
Munt  V.  Stokes,  Id.  561,  in  which  he  said  the  principles  of  the  case 
of  Astley  v.  Reynolds  were  fully  recognized  and  adopted. 

In  Fleetwood  v.  The  City  of  New  York,  2  Sandf.  S.  C.  R.  479,  Mr. 
Justice  Sandford  refers  with  approbation  to  the  case  of  Chase  v. 
Dwinal,  7  Greenl.  134,  and  says:  "There  are  cases  of  duress  of 
personal  property,  in  which  payments  for  its  relief  are  deemed  invol- 
untary, and  the  money  may  be  recovered  back.  Most  of  these  cases 
have  arisen  upon  seizures  of  goods  under  revenue  or  excise  laws,  and 
by  public  officers  acting  under  process  or  warrant  of  law.  The  prin- 
ciple has  been  extended,  occasionally,  to  cases  where  bailees  or  others, 
who  came  into  the  possession  of  goods  lawfully,  have  exacted  more 
than  was  due,  before  they  would  relinquish  such  possession.  It 
is  founded  upon  the  movable  and  perishable  character  of  the 
property,  and  the  uncertainty  of  a  personal  remedy  against  the 
wrong-doer." 

The  general  rule  undoubtedly  is,  that  this  action  for  money  had 
and  received,  being  an  equitable  action,  lies  whenever  money  has 
been  received  by  the  defendant,  which,  ex  cequo  et  hono,  belongs  to  the 
plaintiff.     Buel  v.  Boughton,  2  Denio,  91. 

In  the  case  of  Chase  v.  Dwinal,  7  Greenl.  134,  it  was  held,  that 
money  paid  to  liberate  a  raft  of  lumber  detained  in  order  to  exact 
an  illegal  toll,  might  l)e  recovered  back.  Weston,  J.,  in  delivering 
the  opinion  of  the  Court,  refers  to  the  remark  of  Spencer,  J.,  in  Hall 
V.  Shultz,  that  Astley  v.  Reynolds  had  been  overruled  by  Lord  Kenyon 


CHAP.    I.]  TUTT    V.    IDE.  181 

in  Knibbs  v.  Hall,  and  says:  "There"  (in  Knibbs  v.  Hall)  "the  plain- 
tiff had  paid,  as  he  insisted,  five  guineas  more  rent  than  could  have 
been  riglitt'uUy  claimed  of  him,  to  avoid  a  distress  which  was  threat- 
ened. Lord  Kenyon  held  this  to  be  a  voluntary  payment  and  not 
upon  compulsion,  as  the  party  might  have  protected  himself  from  a 
wrongful  distress  l)y  replevin.  His  Lordship  does  not  advert  to  the 
case  of  Astley  v.  Eeynolds;  and  subsequently,  in  CartwTight  v.  Rowly, 
before  cited"  (from  2  Esp.  723),  "he  refers,  with  approbation,  to  an 
action  within  his  recollection,  for  money  had  and  received,  brought 
against  the  steward  of  a  manor,  to  recover  money  paid  for  producing 
at  a  trial  some  deeds  and  Court  rolls,  for  which  he  had  charged 
extravagantly.  It  was  urged  that  the  payment  was  voluntary;  but,  it 
appearing  that  the  party  could  not  do  without  the  deeds,  and  that 
the  money  was  paid  through  the  urgency  of  the  case,  the  action  was 
sustained." 

In  Chase  v.  Taylor,  4  Harr.  &  Johns.  54,  it  was  held,  that  money 
improperly  demanded  as  a  condition  of  the  release  of  a  ship  pledged 
to  the  party  receiving  the  money,  might  be  recovered  back,  in  an  action 
for  money  had  and  received. 

The  cases  of  Alston  v.  Durant,  2  Strobhart,  257,  and  Richardson  v. 
Duncan,  3  X.  H.  508,  are  also  strongly  confirmatory  of  the  case  of 
Astley  V.  Reynolds ;  and  other  cases  of  a  similar  character  are  to  be 
found  in  the  reports  of  the  different  States. 

In  respect  to  the  English  cases,  it  may  be  observed,  that  the 
decision  in  Astley  v.  Reynolds,  made  in  the  King's  Bench  sitting 
in  banco,  ought  not  to  be  considered  as  overruled  by  a  nisi  prius 
decision,  though  made  by  a  judge  of  such  distinguished  ability  and 
learning  as  Lord  Kenyon.  But  the  case  of  Astley  v.  Reynolds  and 
not  that  of  Knil)bs  v.  Hall  has,  since  the  decision  of  Lord  Kenyon, 
been  followed  in  England. 

In  1827,  in  Shaw  v.  Woodcock,  7  Barn.  &  Cress.  73,  it  was  held 
by  Lord  Chief  Justice  Tenteuden,  and  Justices  Bayley,  Holroyd 
and  LiTTLEDALE,  of  the  King's  Bench,  that  a  payment  made  in  order 
to  obtain  possession  of  goods  or  property  to  which  a  party  was  entitled, 
and  of  which  he  could  not  otherwise  obtain  possession  at  the  time, 
was  a  compulsory  and  not  a  voluntary  payment,  and  might  be  recov- 
ered back.  In  1844,  in  the  case  of  Parker  v.  The  Great  Western 
Railway  Co.,  7  Mann.  &  Gr.  253,  it  was  held  by  the  Court  of  Common 
Pleas  in  P^ngland,  Chief  Justice  Tindal  delivering  the  judgment  of 
the  Court,  that  money  paid  by  the  plaintiff  to  a  common  carrier,  to 
obtain  possession  of  the  plaintiff's  goods,  beyond  the  amount  to  which 
the  carrier  was  entitled,  might  be  recovered  back:  such  payment  not 
being  considered  as  a  voluntary  payment.  And  this  doctrine  I  under- 
stand to  have  been  again  acted  upon  in  the  Court  of  Exchequer,  in 
Parker  v.  The  Bristol  &  Exeter  Railway  Co.,  7  Eng.  Law  &  Eq.  R. 
528,  in  the  year  1851. 


183  CKAXDLEK    V.    SANGER    AXD    AXOTHER.  [BOOK    II. 

I  am  entirely  satisfied,  as  well  upou  the  authority  of  these  cases,  as 
upon  principle,  that  the  payment  alleged  in  the  count  demurred  to, 
cannot  be  held  to  have  been  a  voluntary  payment.  The  demurrer 
is,  therefore,  overruled.^ 


CHANDLEE  v.  SANGEE  AND  ANOTHER 

Supreme  Judicial  Court  of  Massachusetts,  1874.    ' 
[114  Massachusdis,  364,] 

Contract  for  money  had  and  received.  At  the  trial  in  the  Superior 
Court,  before  EockwellJT.V  tlie^laintiff,  in  opening  his  case,  stated 
that  he  expected  to  prove  that  the  plaintiff  was  a  dealer  in  ice,  and 
furnished  ice  each  week-day  to  parties  in  Boston,  under  contracts  to 
furnish  a  certain  amount  daily,  upon  all  week  days;  that  his  custom 
was  to  have  his  carts  loaded  by  twelve  o'clock  on  Sunday  night,  in 
order  to  start  early  Monday  morning;  that  any  failure  on  the  part 
of  the  plaintifE  to  furnish  his  customers  with  ice  on  ]\Ionday  would  be 
a  great  injury  to  him;  that  Monday  morning,  July  12,  1869,  he  had 
standing  in  his  sheds  at  Brighton,  adjoining  his  ice-house,  five  heavy 
two-horse  teams  loaded  with  ice,  ready  to  start  for  Boston  before  light ; 
that  -tfee-def eTrdant^Sanger  held  Iris  prom iss^^ry  not-©-a»d-feaft-frroved 
if,-affflinst  his  pstafp.  in  insnlveTiey ;  that  in  the  insolvencx43£aceeding 
he  had  obtained  his  discharge ;  that  the  defendants  knew  these  facts ; 

^The  case  was  subsequently  tried,  on  issues  of  fact,  before  Hall,  J.,  and  a 
jury,  when  a  verdict  was  found  for  the  plaintiffs,  the  Court  ruling,  as  to  the 
law,  in  accordance  with  this  opinion.  On  a  motion,  before  Nelson,  J.,  made 
by  the  defendants,  for  a  new  trial,  he  said  (September  1st,  1859)  :  "I  am 
entirely  satisfied  with  the  opinion  of  Judge  Hall  in  this  case,  delivered  on 
the  decision  of  the  demurrer  to  the  declaration,  and  which  he  followed  on  the 
trial  of  the  issue  of  fact,  and  must,  therefore,  deny  the  motion  for  a  new  trial, 
and  give  judgment  for  the  plaintiffs  upon  the  verdict.  The  opinion  in  the  case 
of  Converse  v.  Coit,  delivered  by  me  in  the  State  Court,  and  referred  to  on  the 
argument,  turned  upon  a  different  question  from  the  one  involved  in  this 
case." 

Accord:  Ashmole  v.  Wainright  (1842)  2  Q.  B.  837;  Parker  v.  Gt.  Western 
Railway  Co.  (1844)  7  M.  &  G.  253  (authorities  collated  and  analyzed  by 
Tixdal,  C.  J.,  pp.  293,  294)  ;  Harmony  v.  Bingham  (1854)  12  X.  Y.  99;  Beck- 
with  V.  Frisbie  (1860)  32  Vt.  559  (digesting  authorities). 

And  on  this  whole  subject,  see  the  opinion  of  Green,  J.,  in  \Y.  Va.  Trans- 
portation Co.  V.  Sweetzer  (1885)  25  W.  Va.  434,  441-465— one  of  the  most 
elaborate  and  carefully  considered  discussions  to  be  found  anywhere  in  the 
reports — in  which  the  authorities  are  collected  and  analyzed  in  a  masterly 
way. — Ed. 


CHAP.    I.]  CHANDLER   V.    SANGER   AND    ANOTHER.  183 

that  the  defendiint  Sanger  and  the  other  defendant,  who  was  an 
attorney-at-law,  brought  an  action  on  this  promissory  note,  under 
circumstances  which  would  satisfy  the  jury  that  the  action  was  com- 
menced and  carried  on  by  them  fraudulently,  with  the  purpose  of 
extorting  money  from  the  plaintiff  by  duress,  under  color  of  legal 
process;  that  in  pursuance  of  this  purpose,  they  went  abouH;wo  o^lock 
on_Monday  morning  with  a  writ  jn  the^handsljif!.  an  nfficer  and  made 
an  attachment  of  the  carts,  horses,  and  harnesses;  that  the  attorney- 
at-law,  wlio  had  been  with  the  officerTtrmalang  the  attachment,  went 
to  the  plaintiff's  house  and  informed  him  of  the  attachment,  and  told 
him  that  none  of  the  property  so  attached  could  go  to  Boston  unless 
the  claim  should  first  be  settled  by  the  payment  of  $300;  that  the 
plaintiff  told  the  attorney  that  he  did  not  owe  anything,  and  said  he 
would  dissolve  the  attachment  by  giving  a  bond ;  that  the  attorney 
then  told  him  that  it  would  take  three  days  to  dissolve  it,  and  that 
for  that  time  the  property  would  be  held  under  it,  and  that  his  dis- 
charge in  insolvency  did  not  cut  off  the  claim;  that  tbe-plaintiff 
belieigd^  these  statements,  and  being  ignorant  of  tlie  method  of  ^is- 
solving-attachments  .and  being  in  fear  of  great  loss  in  his  business, 
to  relieve  the  j)roperty  from  attachment  he^aid  the  $300  to_the 
attornev  under  protest,  stating  that  he  should  claim  and  enforce  his 
rights,  and  recover  back  the  money, 

"ThQ^residing  judg-e  beings  of  the  opinion  that  these  facts,  if  proved, 
would  not  sustain  the  action,  so  ruled;  whereupon,  by  consent  of  the 
parties,  he  reported  the  case  to  this  court  for  their  decision.  It  was 
agreed  that  if  the  court  should  be  of  opinion  that  these  facts,  if  proved, 
were  sufficient  to  sustain  the  action,  then  it  was  to  stand  for  trial; 
otherwise  judgment  was  to  be  entered  for  the  defendants. 

Gray,  J.  This  is  not  an  action  of  tort,  to  recover  damages  for 
malicious  prosecution,  or  abuse  of  legal  process,  but  an  action  of  con- 
tract, in  the  nature  of  assumpsit,  for  money  had  and  received  by  the 
defendants,  which  they  have  no  legal  or  equitable  right  to  retain  as 
against  the  plaintiff.  .^Uhnngh  the  process  sued  out  for  the  defendant 
was  in  due  form,  yet  if,  as  was  offered  to  be  proved  at  the  trial, Jie 
frauclulently,  and^^knowmg  that  he  had  no  just  claim  against^he 
plaintiff^  arrested  his  body  or  seized  hi&  goods  thereon,  for  tlie jiur- 
pose  of  extorting  money  from  him,  then,  according  to  all  the  author- 
itios^^thg  payment  of_nioj[Kn  l)y  n^e^piamtiffjjJLgl^^^gilg^gj}^^ 
or  his  goods  from  such  fraudulent  and  wrongful  detention,  was  not 
Voluntary,  l)ut  by  compulsion ;  and  the  money  so  ]iaid  may  be  recovered 
back,  witlwut  preef-of-srrdT  a  termination  of  the  former  suit  as  would 
bo  necessarv  to  maintain  an  action  for  malicious  prosecution.  Watkins 
V.  Baird,  6  Mass.  506;  Shaw,  C.  J.,  in  Preston  v.  Boston,  12  Pick.  7, 
U;  Benson  v.  Monroe,  7  Cush.  125.  131:  Carew  v.  Rutherford.  lOG 
Mass.  1,  11,  et  seq.;  Eichardson  r.  Duncan.  3  X.  H.  508:  Sartwell  v. 
Horton,  28  Vt.  370;  Gibson,  C.  J.,  in  Colwell  v.  Peden,  3  Watts,  327, 


184  JOANNIN   V.   OGILVIE,  [bOOK   II. 

328 ;  Cadaval  v.  Collins,  4  A.  &  E.  858 ;  Parke,  B.,  in  Oates  v.  Hud- 
son, 6  Ex.  346,  348 ;  and  in  Parker  v.  Bristol  &  Exeter  Railway  Co., 
6  Ex.  703,  705. 

New  trial  ordered.^ 


JOANNIN  V.  OGILVIE. 

Supreme  Court  of  Minnesota,  1892. 

[49  Minnesota,  564.] 

Ogilvie  was  owner  of  real  estate  in  Duhith,  and  erected  certain 
buildings  on  his  property.  One  Thompson  furnished  doors,  sash  and 
other  goods  for  the  buildings,  and  Ogilvie  only  paid  for  the  various 
goods  bought  from  Thompson.  It  appeared  that  Thompson  had  pur- 
chased these  goods  with  others  from  Joannin,  but  Ogilvie  knew  nothing 
of  this  fact. 

Joannin  made  and  filed  for  record  a  lien  statement,  claiming  to 
be  due  him  from  Thompson  $682.50,  and  that  he  was  a  contractor 
with  Ogilvie  to  furnish  material  for  the  buildings  on  the  lots.  .This 
claim  was  incorrect  and  the  lien  invalid.. Ogilvie  was  largely  indebted, 
and  pressedrfdf  money,  and  was  negotiating  for  a  loan  of  $15,000,  to 
be  secured  by  his  mortgage  on  this  real  estate.  The  lenders  refused 
to  make  the  loan  unless  this  lien  was  removed.  Plairrtrffis  refused  to 
discliarge  it  of  record  unless  Ogilvie  paid  Thompson's  debt  to  them. 
H€^-^paidr~it^under  protest  llarch  19,  1890,  and  in  this  action  asked 
judgment  against  plaintiffs  for  the  amount  so  paid,  and  for  a  return 
of  his  stocks." 

]\Iitchell,  J.  The  findings  in  this  case  are  so  specific  as  to  con- 
stitute a  sufficient  statement  of  the  facts,  and  an  examination  of  the 
record  satisfies  us  that,  on  all  material  points,  they  are  fully  justified 
by  the  evidence. 

^The  doctrine  is  well  established  that  p^^iment  to  protect  one's  bii^ess 
is  not  voluntary  and  so  may  be  recovered  in  an  assumpsit  count.  Button  v. 
St.  Louis  (1882)  77  Mo.  47;  Panton  v.  Duluth  Gas  &  Water  CoT(1892)  50  Minn. 
175;  Lehigh  Coal  &  Navigation  Co.  v.  Brown  (1882)  100  Pa.  St.  338;  Swift 
Co.  V.  U.  S.  (1883)  111  U.  S.  22. 

Carew  v.  Rutherford  (1870)  106  Mass.  1,  cited  in  the  principal  case,  is 
interesting  from  the  fact  that  the— injury  threatened  to  plaintiff's  business 
arose  from  a  conspiracy  to  strike,  and  the  money  extorted  to  protect  plaintiff's 
biisiness  was  held  to  be  recoverable.  The  declaration  counted  in  tort  and 
assumpsit,  and  the  court  allowed  a  recoA^ery,  but  it  is  not  entiiely  clear  upon 
which  count.  The  authorities  are  cited  and  carefully  considered  and  there 
can  be  no  reasonable  doubt  of  the  correctness  of  the  decision. — Ed. 

-Statement  substituted  for  the  original  report  and  immaterial  facts  are 
omitted. — Ed. 


CHAP.    I.]  JOANNIN  V.   OGILYIE.  185 

That  plaintiff's  claim  of  a  lien  on  the  land  of  the  defendant  Ogilvie 
was  wholl}^  unfounded  is  conceded.  Merriman  v.  Jones,  43  Minn. 
29  (44  N.  W.  Rep.  526).  Therefore  the  only  question  is  \^diatheiLthe 
payment  of  the.  claim  wa^^-olttntaTy7^oi^^w4^her  it  was  madiLjyider 
su^hMCompulsion  or  constraint  that  it  is  to  .be  djeemedjii  law  involun- 
tary^o  that  the  mnney  may  hs  jecOYered  Imok.  "^ 

In  examining  the  authorities  upon  the  question  as  to  what  pressure 
or  constraint  amounts  to  duress  justifying  the  avoiding  of  contracts 
made,  or  the  recovery  back  of  money  paid,  under  its  influence,  one  is 
forcibly  impressed  with  the  extreme  narrowness  of  the  old  common- 
law  rule  on  the  one  hand  and  with  the  great  liberality  of  the  equity 
rule  on  the  other.  At  common  law,  "duress"  meant  only  duress  of 
the  person,  and  nothing  short  of  such  duress,  amounting  to  a  reason- 
able apprehension  of  imminent  danger  to  life,  limb,  or  liberty,  was 
sufficient  to  avoid  a  contract,  or  to  enable  a  party  to  recover  back 
money  paid.  But  courts  of  equity  would  unhesitatingly  set  aside 
contracts  whenever  there  was  imposition  or  oppression,  or  whenever 
the  extreme  necessity  of  the  party  was  such  as  to  overcome  his  free 
agency.  The  courts  of  law,  however,  gradually  extended  the  doc- 
trine so  as  to  recognize  duress  of  property  as  a  sort  of  moral  duress, 
which  might,  equally  with  duress  of  the  person,  constitute  a  defence 
to  a  contract  induced  thereby,  or  entitle  a  party  to  recover  back 
money  paid  under  its  influence.  And  the  mQdern^uthorities.^generally 
hold  that  such  pressure  or  constraint  as  compels  a  man  to  go  against 
his-wilL,  and  virtually  takes  away  his  free  agency,  and  destroys  tjie 
po^^  of  refusing  to  comply  with  the  unlawful  demand  of  another, 
will  constitute  duress,  irrespective  of  the  manifestation  or  apprelTen- 
sion  of  physical  force.  ^ 

TFe  rule  is  that-nxoney  paid  Yoluntarily^_with  X^^l  knowledge  of 
the  facts,  cannot  be  recovered  liack.  If  a  jnanTchooses  to  give  away  his 
raSgejT^OT  to  take  hi  s"chances  "whether  he  is  giving  it  away  or  not,  he 
cannot  afterwards  change  his  mindj  but  it  is  open  to  him  to  show 
tiiat_he  supposed  the  facts  to  be  otherwise,  or  that  he  xeallyilhad^o 
choice.     Pol.  Cont.  556. 

"^^Fargusson  v.  Winslow,  34  Minn.  384  (25  X.  W.  Eep.  942),  this 
court  held  that  "when  one  in  order  to  recover  possession  of  his  per- 
sonal property  from  another,  who  unjustly  detains  it.  is  compelled  to 
pay  money  which  is  demanded  as  a  condition  of  delivery,  such  pay- 
ment, when  made  under  protest,  is  deemed  to  have  been  made  com- 
pulsorily  or  under  duress,  and  may  be  recovered  back,  at  least  when 
such  detention  is  attended  with  circumstances  of  hardship  or  serious 
inconvenience  to  the  owner."  Again,  in  De  Graff  r.  Ramsey  Co..  46 
Minn.  319  (48  N.  W.  Eep.  1135),  it  was  said:  "There  is  a  class  of 
cases  where,  although  there  be  a  legal  remedy,  a  person's  situa- 
tion, or  the  situation  of  his  property,  is  such  that  the  legal  remedy 
would  not  be  adequate  to  protect  him  from  irreparable  prejudice; 


186  JOANNIN   V.   OGILVIE.  [bOOK   II, 

where  the  circumstances  and  the  necessity  to  protect  himself  or  his 
property  otherwise  than  by  resort  to  the  legal  remedy  nlay  operate 
as  a  stress  or  coercion  upon  him  to  comply  with  the  illegal  demand. 
In  such  cases,  his  act  will  be  deemed  to  have  been  done  under  duress, 
and  not  of  his  free  will."  Fargusson  v.  Winslow,  supra;  State  v.  Nel- 
son, 41  Minn.  25  (42  N.  W.  Eep.  548)  ;  and  Mearkle  v.  County  of  Hen- 
nepin, 44  Minn.  546  (47  N.  W.  Eep.  165), — are  instances  where  the 
danger  of  irreparable  or  serious  prejudice  was  considered  so  great 
andj;lie^j^ai  remedy  so  inadequate  as'To^ractically  leave  the  partj^ 
no  choice  but  to  comply  with  the  illegal  demand,  and  hence  to  jen- 
3etihe~payment  involuntary.  It  may  be  stated  generally  that  jdieu; 
ever  the  demandant  is  in  position  to  seize  or  detain  the  property  of 
hinTagainsl  whutn  the darm  isTnade-wdtlrout"  a  resurL  Lu  judicial  pfo- 
cjgedings.  Ill  which  t;he*piirty  may'pTeaTl7  offerproofT^n^contest  fhe 
validity  of  the  claim,  payment  under  protest,  to  recover  or  Yetalh  tlie 
property,  will  be  considered  as  made  under  compulsion,  and  The 
monej  "c^n  T)rTecuvered  back,  at  least  where  a  failure  to  gef  of  ^re- 
tain immediate  j)ossession  and  control  of  the  propert"y~wouTd*  be 
jittended  with  serious  loss  or  great  inconveniehceT ^OceantcrSteam 
Nav.  Co.  v.  Tappan,  16  Blatchf.  297.  ' 

As  was  said  as  long  ago  as  Astley  v.  Eeynolds,  2  Strange,  915, 
"plaintiff  might  have  such  an  immediate  want  of  his  goods  that  an 
action  of  trover  would  not  do  his  business.  Where  the  rule  volenti 
non  fit  injuria  is  applied,  it  must  be  when  the  party  has  his  freedom 
of  exercising  his  will,  which  this  man  had  not.  We  must  take  it 
he  paid  the  money  relying  on  his  legal  remedy  to  get  it  back  again." 

It  has  been  said  that,  to  constitute  a  payment  under  duress,  "there 
must  be  some  actual  or  threatened  exercise  of  power  possessed,  or 
supposed  to  be  possessed,  by  the  party  exacting  or  receiving  the  pay- 
ment, over  the  person  or  property  of  the  party  making  the  payment, 
from  which  the  latter  has  no  other  means  of  immediate  relief  than 
bv  advancing  the  money."  Brumagim  v.  Tillinghast,  18  Cal.  265; 
Eadich  v.  Hutchins,  95  "U.  S.  210. 

Beyond  these  and  similar  statements  of  general  principles,  the 
courts  have  not  attempted  to  lay  down  any  definite  and  exact  rule  of 
universal  application  by  which  to  determine  whether  a  pajinent  is 
voluntary  or  involuntary.  From  the  very  nature  of  the  subject,  this 
cannot  be  done,  as  each  case  must  depend  somewhat  upon  its  own 
peculiar  facts.  The  real  and  ultimate  fact  to  be  determined  in 
every  case  is  whether  or  not  the  party  really  had  a  choice, — whether 
"he  had  his  freedom  of  exercising  his  will."  The  courts,  however, 
by  a  gradual  process  of  judicial  exclusion  and  inclusion,  have  arranged 
certain  classes  of  cases  on  one  or  the  other  side  of  the  line.  For 
example,  payment  of  an  illegal  tax,  in  order  to  prevent  issuing  a 
warrant  of  distress  in  the  nature  of  an  execution,  and  upon  which 
the  party  has  no  day  in  court  or  opportunity  to  defend,  is  held  not 


ClIAP.    I.]  JOAXXIX   V.   OGILVIE.  187 

voluntary.  Such  were  the  cases  of  Board  of  County  Com'rs  of 
Dakota  Co.  v.  Parker,  7  Minn.  267  (Gil.  307),  and  Preston  v.  Boston, 
12  Pick.  7.  So,  also,  the  payment  of  an  illegal  demand  in  order  to 
obtain  possession  of  personal  property  detained  otherwise  than  by 
judicial  process,  and  where  the  immediate  want  of  the  property  was 
so  urgent  that  an  action  of  replevin  "would  not  do  the  owner's  busi- 
ness."' Such  was  the  case  of  Fargusson  v.  Winslow,  supra.  Also 
the  payment  of  an  illegal  tax  in  order  to  get  a  deed  on  record,  as  in 
the  case  of  State  v.  Nelson,  supra;  or  the  payment  of  illegal  fees  in 
order  to  secure  the  exercise  of  its  jurisdiction  by  the  probate  court 
in  the  administration  and  settlement  of  an  estate,  where  the  delay 
was  liable  to  result  in  serious  loss,  as  in  the  case  of  Mearkle  v.  County 
of  Hennepin,  supra. 

On  the  other  hand,  it  is  well  settled  that  ^he  mere  refusal  ^of  a 
party  to  pay;  a  debt  or  tojierform  a  contract  is  not  duress,  so  i]?iJo 
avoid  a  contract  procured  by  ineans  _of_such  refusal,  although_ihe 
other  parfy"wa^  mfluejjxiPfi  iTi_PTitpri'Ticy^intr>  it  by  his  financial  neces- 
sities^ Such  was  the  case  of  Cable  v.  Foley,  45  Iklinn.  421  (47 
N.  W.  Eep.  1135) ;  also  Miller  v.  Miller,.  68  Pa.  St.  486;  Hackley  v. 
Headley,  45  Mich.  569  (8  N.  W.  Rep.  ,511);  Goebel  v.  Linn,  47 
Mich.  489  (11  N.  W.  Rep.  284)  ;  and  Silliman  v.  United  States,  101 
U.  S.  465, — cited  by  plaintifl:.  It  will  be  noted  that  in  the  last  case 
referred  to  the  party  entered  into  the  new  contract,  not  for  the  pur- 
pose of  obtaining  possession  of  his  property  (the  barges),  but  to 
secure  payment  of  money  due  him  from  the  government. 

So,  also,  the  £actthat  a  lawsuit  is  threatened  iir_prQperty  has  J^e^n 
seized  on  legal  process  m  jnd icial . jjroceedings^o  enforce  an  illegal 
demand  will  not  render  its  paymeiit-^ompuisosy,— at_Jeast^  in  the 
al^sence  of  fraud  on  part  of  the  demandant  in  resorting  to  legal  process 
fqr_jthe  purpose  of  extorting  payment  of  a  claim  Avhich  he  knows  to 
he. unjust.  _^ The  ground  upon  which  this  doctrine  rests  is  that  the 
pai:tvlias  an  opportunity  to  plead  and  test  the  legality  of  the  claim 
in  the  very  proceedings  in  which  his  property  is  seized.  Under  this 
class  fall  the  following  cases~crted  hy"^aintiffs :  Forbes  v.  Appleton, 
5  Cush.  115;  Benson  v.  Monroe,  7"Cush.  125;  Taylor  v.  Board  of 
Health,  31  Pa.  St.  73;  Oceanic  Steam  ISTav.  Co.  v.  Tappan,  supra. 

Also  the  payment  of  an  illegal  license  to  follow  a  particular  business, 
where  the  party  could  not  have  been  subjected  to  any  penalties  with- 
out judicial  proceedings  to  enforce  them,  in  which  he  would  have  an 
opportunity  to  contest  the  legality  of  the  license,  or  where  the  license 
was  exacted  for  a  business  the  pursuit  of  which  was  not  a  natural 
right,  but  a  mere  privilege,  which  might  be  granted  or  withheld,  at 
the  option  of  the  state.  To  this  class  belong  the  following  cases 
cited  by  plaintiffs :  Cook  v.  Boston.  9  Allen,  393 ;  Emery  v.  Lowell. 
]27  Mass.  138;  Mays  v.  Cincinnati,  1  Ohio  St.  268;  Custin  v.  City 
of  Viroqua,  67  Wis.'  314  (30  N.  W.  Rep.  515). 


188  jOANNiisr  V.  oGiLviE.  [book  II. 

The  saniG  has  been  held  as  to  money  paid  under  threats  of  distress 
for  rent,  in  the  absence  of  fraud  or  any  other  fact,  except  that  no 
rent  was  due.  The  theory  seems  to  be  that  the  party's  remedy  is  to 
replevin,  and  try  the  question  of  liability  at  law.  Such  was  the  case 
of  Colwell  V.  Peden,  3  Watts,  327,  also  cited  by  plaintiffs. 

But  all  these  cases  in  which  the  payment  was  held  voluntary  are 
clearly  distinguishable  from  the  case  at  bar.  The-distinguishing  and 
ruling  fact  in  this  case  was  the^  active  interference  of  plaintiffs  witji 
defendant's  property  by  filing  the  claim  for  a  lien,_which_effectual]y 
prevented  the  defendant  from  using  it  for  the  purposes  for  which  he 
had  immediate  and  imperative  need.  ^ 

IF  was  this  active  interference  with  the  property,  and_jnot  the 
necessitous  financial  condition  of  the  defendant,  which  constituted^the 
ciffltrolling  facL  The  latter  was  only  one,  and  by  no  means  the 
most  important,  of  the  circumstances  in  the  case.  Counsel  for 
plaintiffs  seems  to  assume  that  the  filing  of  the  claim  for  a  lien  was 
the  commencement  of  a  judicial  proceeding  for  its  enforcement,  and 
therefore,  within  the  doctrine  of  cases  cited  by  him,  that  the  subse- 
quent payment  of  the  claim,  was  voluntary,  because  defendant  might 
have  interposed  his  defence  in  these  proceedings.  But  this  is  clearly 
wrong.  Filing  a  lien  is  in  no  sense  the  commencement  of  judicial 
]iroceedings.  The  only  remedies  open  to  defendant  were  either  to 
commence  a  suit  himself  to  determine  the  validity  of  plaintiffs'  claim, 
or  wait,  perhaps  a  year,  until  the  latter  should  commence  a  suit  to 
enforce  it.  But  with  a  large  indebtedness  hanging  over  him,  an 
overdue  mortgage  on  this  very  property  upon  which  foreclosure  was 
threatened,  with  no  means  to  pay  except  money  which  he  had 
arranged  to  borrow  on  a  new  mortgage  which  he  had  executed  on  this 
same  property,  $13,000  of  which  was  withheld  and  could  not  be 
obtained  until  plaintiffs'  claim  of  lien  had  been  discharged  of  record, 
it  is  very  evident  that  neither  of  the  remedies  suggested  "would  do 
defendant's  business."  He  was  so  situated  that  he  could  neither  go 
])ackward  nor  forward.  He  had  practically  no  choice  but  to  submit 
to  plaintiff's'  demand.  Had  it  been  goods  and  chattels  which  plain- 
tiff's had  withheld  under  like  circumstances,  there  would  be  no  doubt, 
under  the  doctrine  of  Fargusson  v.  Winslow,  supra,  but  that  the  pay- 
ment would  be  held  to  have  been  made  under  duress.  But  while 
filing  the  lien  did  not  interfere  with  defendant's  possession  of  the 
land,  yet  it  as  effectually  deprived  him  of  the  use  of  it  for  the  pur- 
poses for  which  he  needed  it  as  would  withholding  the  possession  of 
chattel  property. 

It  has  been  sometimes  said  that  there  can  be  no  such  thing  as 
duress  with  respect  to  real  property,  so  as  to  render  a  payment  of 
money  on  account  of  it  involuntary.  But  this  is  not  sustained  by 
either  principle  or  authority.  In  view  of  the  immovable  character  of 
real  property,  duress  with  respect  to  it  is  not  likely  to  occur  as  often 


CHAP.    I.]  JACK    V.    FIDDES.  189 

as  with  respect  to  goods  and  chattels.  But  the~-question  in  alljiases 
is,  was  the  payment  voluntary?  and  for  the  purpose  of  determining 
that  question  there  is  no  dill'erence  whether  the  duress  be  of  goods 
and  chattels,  or^f  real  property,  or  of  the  persop.  Fraser  v.  Pendle- 
bury,  31  Law  J.  C.  P.  1;  Pembertonl;.  Williams,  87  111.  15;  Close  v. 
Phipps,  7  Man.  &  G.  586;  White  v.  Heylman,  34  Pa.  St.  142;  State  v. 
Nelson,  supra. 

Considerable  stress  is  placed  upon  defendant's  silence  and  appar- 
ent acquiescence  for  a  considerable  time  after  he  paid  plaintiff's 
claim.  This  might  have  some  bearing  upon  the  question  whether 
the  payment  was  voluntary  or  involuntary;  but  if  it  was  in  fact  the 
latter,  and  a  cause  of  action  to  recover  back  the  money  accrued  to 
defendant,  it  would  be  neither  waived  nor  barred  by  his  subsequent 
silence  or  delay  in  asserting  his  right  of  action. 

Judgment  affirmed.^ 


2,    UNDER    COMPULSION    OF    LEGAL    PROCESS. 

JACK  V.  FIDDES. 

Court  of  Sessions,  Scotland,  1661. 

[Morrison's  Dictionary  of  Decisions,  2923.] 

There  being  ailBcreet  recovered  by  another  Fiddes  against  Jack, 
before  the  English  officers  at  Leith,  in  the  beginning  of  the  year  1652, 
for  a  sum  of  money;  whei-euponJact being  incarcerate,  he  was  forced 
to_give  a  bond_to  this  defender,  who  was  ns^'g^^*^  constitute  by^this 
Fiddes,  and  to  give  his  brother  cautioner  therein  TJpoLii.which^new 
bond  Jack  was  also  charged,  and  an  act  of  warding  followed  there- 
upon ;  the l5ond~bemg  registrate  in  the  town  court-books  of  Edinburgh. 
Jack__gaye  in  a^jjilLto  the-Parliament,  aJueb-^vao  remitted— to  the 
Session,  desiring  repetition  of  the  sum.     It  was  alleged.  There  could 

'The  following  are  some  additional  cases:  Woodham  v.  Allen  (1900)  130 
Cal.  194;  Sehiffer  v.  Adams  (1889)  13  Col.  572;  Brooks  v.  Berrrhill  (18G3) 
20  Ind.  99;  Ingalls  v.  Miller  (1889)  121  Ind.  188;  Baldwin  v.  Hutchinson 
(1893)  8  Ind.  App.  454;  Thorn  v.  Pinkham  (1891)  84  Me.  101;  Parkes  r. 
Lancaster  (1892)  84  IMe.  512;  Canfield  Salt  &  Lumber  Co.  r.  Manistee  (1894) 
100  Mich.  400;  Weston  v.  County  of  Luce  (1894)  102  Mich.  528;  :Mearkle  r. 
County  of  Hennepin  (1900)  44  Minn.  546;  Bocchino  v.  Cook  (1902)  67  N.  J.  L. 
467;  Smyth  v.  Mayor  (1890)  11  N.  Y.  Supp.  583;  Redmond  r.  Mayor  (1890). 
11  N.  Y.  Supp.  782;  Buford  r.  Lonercjan  (1889)  6  Utah.  301;  Xutter  v. 
Sydenstricker  (1877)  11  W.  Va.  535.  And  on  the  subject  of  duress  generally, 
see  an  elaborate  note  in  20  Am.  Dec.  374-378. — Ed. 


190  JAMES  V.  CAVIT's  ADMINISTRATOR,  [BOOK    II, 

be  no  condiciio  indehUi,  where  there  was  ohligatio  naturalis  or  civilis 
preceding :  Ita  est,  there  was  not  only  a  civil  obligation  by  the  sentence 
recovered,  but  by  the  new  bond  granted  to  the  assignee,  who  was  not 
obliged  to  know,  how,  or  what  way  the  sentence  was  obtained:  And 
Jack  having  transacted  therefor,  he  could  not  now  be  heard  to  quarrel 
the  transaction  against  the  assignee,  or  to  crave  repetition.  It  was 
answered,  That  the_officers'  sentence  was  most  unjust,  both  in  the 
matter  and  the  manner,  they  having  no  civil  jurisdiction:  And  the 
same  defender  was  assistant  to  the  cedent  in  recovering  of  the  sentence, 
as  he  will  not  deny.  Likeas,  the  pursuer  was  forced  to  grant  the  new 
bond  to  him  as  assignee,  and  pay  the  new  bond  to  free  himself  of 
prison;  there  being  no  civil  judicatory,  where  he  could  have  any 
remedy;  the  English  Judges  for  administration  of  justice  not  being 
then  established,  who  sat  not  till  June  1653.  .And  though  it  had  been 
sitting,  it  could  not  have  been  expected  that  Jack  could  have  helped 
himself,  by  any  course  they  would  have  taken,  for  annulling  the  sen- 
tence of  the  English  officers.  I^iJie^s,  by  an  act  of  the  late  Parliament,. 
aU-gentences  pronounced  by  the  Englishes,  since  their  in-coming^re 
appointed~toT)e  reviewed^^ 

The  Lords  repeTTedrlHe  allegeance,  and  sustained  repetition. 
"  ~"  In  prcesentia. 


MOSES  V.  MACFEELAK 

King's  Bench,  1760. 

[3  Burrow,  1005.] 

See  ante  p.  4  for  a  report  of  the  case. 


JAMES  V.  CAVIT'S  ADMINISTEATOE. 

Constitutional  Court  of  South  Carolina,  1807. 

[3  Brevard,  old  ed.  *174.] 

Summary  process,  in  Sumter  district,  before  Brevard,  J.  The 
petition  stated  that  the  defendants  had  sued  the  plaintiff  for  certain 
goods  sold  and  delivered;  and  that  at  the  trial,  the  plaintiff  had  mis- 
laid a  receipt  or  release  from  Cavit,  which  he  had  given,  in  his  life- 
time, to  the  plaintiff,  acknowledging  satisfaction  in  full  for  the  same 
goods,  and  was  unable  to  produce  the  same,  in  consequence  of  which 


CHAP.    I.]  JAMES  V.  CAVIT's  ADMINISTRATOR.  191 

jud<j^nicnt  had  been  obtained  against  him ;  and  that  he  had  since  found 
the  said  receipt,  and  therefore  claimed  to  recover  back  the  money,  so 
unjustly  recovered  in  the  former  action  of  the  defendants  against  him. 
It  appeared  that  the  plaintiff  had  moved  the  court,  soon  after  the  judg- 
ment 'had  been  obtained  against  him,  which  had  been  obtained  in  a 
summary  way  by  petition  and  process,  to  open  his  judgment,  and  let 
him  into  his  defence;  but  Waties,  J.,  who  presided,  refused  to  grant 
the  motion. 

Simons,  for  the  defendants  in  the  present  case,  objected  to  the  juris- 
diction of  the  court,  and  insisted  that  the  court  could  not  overhaul  the 
former  judgment;  and  that  the  plaintiff  was  estopped  from  claiming 
money  which  had  been  duly  recovered  in  a  legal  course ;  and  that  it 
was  his  own  folly,  or  neglect,  if  he  suffered  a  decree  to  pass  against 
him  for  money  which  he  had  paid,  and  had  a  receipt  for. 

Broun,  for  the  plaintiff.  The  defendants  have  received  money 
which  ex  a'quo  et  bono  they  ought  to  refund;  and,  as  no  writ  of  error 
lies  in  this  country,  there  is  no  other  relief.  A  contract  to  refund  may 
be  implied,  though  the  money  was  recovered  by  an  adverse  suit.  This 
was  decided  in  the  case  of  Moses  v.  Macfarlen,  2  Burr.  1005. 
The  remedy  is  founded  on  the  equity  of  the  case,  quasi  ex  contractu, 
and  is  more  particularly  to  be  encouraged  under  the  summary  juris- 
diction of  this  court,  as  the  parties  under  the  summary  jurisdiction 
are  entitled  to  the  benefit  of  all  such  matters  as  would  avail  in  a  court 
of  equity. 

The  court  decreed  in  favor  of  the  defendants,  upon  the  ground  that 
money  recovered  by  the  judgment  of  the  court  of  competent  jurisdic- 
tion, cannot  be  recovered  back  in  a  new  action,  though  the  error  or 
mistake  in  that  judgment  may  be  made  manifest;  and  that  the  merits 
of  a  judgment  cannot  be  examined  into,  and  questioned  in  any  origi- 
nal suit  in  the  court  of  common  pleas.  Till  it  is  set  aside,  or 
reversed,  it  must  be  conclusive  as  to  the  subject-matter  of  it,  to  all 
intents  and  purposes.  This  is  the  language  of  Lord  Mansfield,  in  the 
case  of  ^Moses  and  Macfarlen.  The  ground  of  relief  in  that  case  was 
not  that  the  judgment  was  wrong,  but  because  the  plaintiff'  could  not 
avail  himself  of  the  matter  on  which  his  claim  was  founded,  in  his  de- 
fence in  the  action  against  him ;  because  the  court  of  conscience, 
which  adjudged  against  him,  had  no  cognizance  of  the  collateral  mat- 
ter set  up  in  his  defence.  That  obstacle  did  not  prevent  the  plaintiff, 
in  this  action,  from  the  benefit  of  his  receipt  in  the  action  against  him ; 
and  if  he  was  unable,  from  accident  or  misfortune,  to  produce  it  on 
that  occasion,  this  certainly  is  not  the  proper  form  of  relief,  if  he  is 
entitled  to  nny.  If  he  had  been  guilty  of  Inches  in  the  matter,  he  can- 
not be  relieved  at  all.  Vigilantibus  et  non  dormientibus  leges  subve- 
72iuiit. 

The  motion  in  this  court,  was  on  the  ground  of  mistake  as  to  the 
law,  and  was  supported  by  RicJianhoii.  of  counsel,  for  the  plaintiff. 


192  TILTON   V.   GORDON.  [BOOK    II. 

But  the  court  unanimously  discharged  the  motion,  and  confirmed  the 
determination  of  the  district  court.     Transit  in  rem  judicatem} 


TILTON  V.  GOEDON". 

Superior  Court  of  Judicature  of  New  Hampshire,  1817. 

[1  New  Hampshire,  33.] 

This  was  an  action  of  assumpsit,  in  which  the  plaintiff  declared 
in  several  counts  for  the  same  cause  of  action.  The  last  of  these 
counts,  which  sets  out  the  facts  of  the  plaintiff's  case  very  fully,  alleges, 
that  on  the  31st  of  March,  1801,  the  plaintiff  gave  to  the  defendant 
two  promissory  notes,  for  upwards  of  two  hundred  dollars  each,  and 
that  on  the  7th  of  April,  1803,  the  plaintiff  delivered  to  the  defend- 
ant a  yoke  of  oxen,  at  the  price  of  fifty-five  dollars,  in  part  payment 
of  the  notes:  that  the  defendant  promised  the  plaintiff  to  endorse 
the  price  of  the  oxen  on  the  notes,  but  neglected  to  do  so,  and  after- 
wards brought  a  suit  upon  the  notes :  that  the  plaintiff,  relying  upon 

'Accord:  Kirklan  v.  Brown's  Adminis.  (1843)  4  Humph.  174;  White  v. 
Ward   (1812)    9  Johns.  232;  Loomis  v.  Pulver   (1812)   id.  244. 

In  the  earlier  case  of  Marriott  v.  Hampton  (1797)  7  T.  R.  269,  identical  as 
to  its  facts,  the  same  result  was  reached.  In  England  the  courts  have  refused 
to  apply  the  rule  in  cases  in  which  the  one  securing  the  judgment  does  not 
actTm  good^tattti.  Ward  t?.  Wallis  [1900]  1  Q.  B.  675.  But  iiTAniericartlie 
question  of  fraud  has  been  held  immaterial.  Walker  v.  Ames  (1823)  2  Cow.  428. 
The  principle  underlying  the  rule  is  discussed  briefly  in  Moore  v.  Vestry  of 
Fulham    [1895]    1    Q.   B.   399. 

But  modifying  the  strict  principle,  after  part  payment  of  a  judgment  founded 
on  a  usurious  contract,  an  equity  court  may  set  aside  the  judgment,  but  only 
on  condition  that  the  defendant  pay  the  principal  with  legal  interest.  Hindle  v. 
O'Brien  (1809)  1  Taunt.  413.  But  when  a  new  security  is  given  for  a  judg- 
ment founded  on  a  usurious  contract,  the  court  has  refused  to  interfere. 
Thatcher  v.  Gammond  (1815)  12  Mass.  268.  In  Federal  Ins.  Co.  v.  Robinson 
(1876)  82  Pa.  St.  357,  the  court  held  that  where  the  payment  of  usurious 
interest  was  made  upon  process  of  execution  and  there  was  no  allegation  of 
actual  collusion  to  evade  the  statute,  it  was  not  recoverable  in  a  new  suit.  The 
court  there  said:  "Money  collected  or  paid  upon  lawful  process  of  execution 
cannot  be  recovered  back,  though  not  justly  or  lawfully  due  by  the  defendant 
in  the  execution  to  the  plaintiff.  The  authorities  for  this  position  are  many 
and  clear.  1  Selwyn's  N.  P.  82;  1  Archbold's  N.  P.  267;  Rapelje  v.  Emory, 
2  Dallas,  51,  231;  Herring  v.  Adams,  5  W.  &  S.  459;  Mann's  Appeal,  1  Barr. 
29;  Boas  v.  Updegrove,  5  id.  516.  .  .  .  The  reason  is  a  very  obvious  one.  An 
execution  is  the  end  of  the  law.  To  permit  money  so  collected  or  paid  to 
be  reclaimed  in  a  new  suit,  would  lead  to  indefinite  and  endless  litigation. 
If  such  suit  could  be  maintained,  then  another  might  be  brought  to  recover  the 
money  paid  on  tlie  judgment  and  execution  in  it,  and  so  on  ad  infinitum." — En. 


ClIAI'.    I.]  TILTOX    r.   GORDOX.  193 

the  defcndant''s  promise  to  endorse  the  price  of  the  oxen  upon  the 
notes,  suffered  the  defendant  to  take  judgment  against  him  hy  default, 
and  has  been  compelled  to  pay  the  whole  amount  of  the  notes,  without 
any  allowance  for  the  price  of  the  oxen. 

The  defendant  pleaded  the  general  issue.  The  cause  was  tried  here 
at  February  term,  181G. 

The  evidence  given  on  the  trial  fully  proved  all  the  material  facts, 
as  stated  in  the  count  referred  to.  A  verdict  was  returned  for  the 
plaintiff,  which  the  defendant  moved  should  be  set  aside,  as  against 
law,  and  a  new  trial  granted. 

Bell,  J.^  The  plaintiff's  declaration,  as  well  as  his  evidence,  shows 
that  the  oxen,  for  the  price  of  which  this  suit  is  brought,  were 
delivered  by  the  plaintiff  to  the  defendant  in  part  payment  of  an 
existing  debt,  and  not  on  a  contract  of  sale  on  a  credit. 

The  evidence  in  the  case  would  have  afforded  the  plaintiff  a  good 
defence,  to  the  extent  of  fifty-five  dollars,  in  the  action  brought  by  the 
defendant  against  the  plaintiff  upon  the  notes.  It  could  only  have 
availed  the  plaintiff  as  a  defence  as  payment,  and  not  as  a  set  off.  A 
set  off  can  only  be  of  an  existing  debt,  for  the  recovery  of  which  the 
party  pleading  might  have  maintained  an  action.  Had  the  plaintiff, 
before  the  suit  brought  against  him  on  the  note  by  the  defendant, 
commenced  an  action  against  the  defendant  for  the  price  of  the  oxen, 
as  on  a  contract  of  sale,  it  cannot  be  pretended  that  he  could  have 
succeeded. 

The  evidence  in  this  case  would  have  made  a  complete  defence  to 
such  action;  it  would  have  shewn  conclusively  that  the  oxen  passed 
from  the  plaintiff  to  the  defendant  in  part  payment  of  a  debt,  and 
not  on  a  contract  of  sale  on  a  credit.  This  action  cannot  be  supported 
on  the  ground  of  a  sale  of  the  oxen  in  question,  on  a  credit,  as  all  the 
evidence  shows  it  was  not  so;  if  supported  at  all,  it  must  be  on  the 
ground  that  the  defendant  recovered  more  in  the  action  on  the  notes 
than  was  due  to  him.  On  this  ground,  the  plaintiff  cannot  recover. 
No  legal  question  is  more  fully  settled  and  at  rest,  than  that  the 
merits  of  a  judgment  recovered  in  a  court  of  competent  jurisdiction, 
whilst  unreversed,  is  conclusive  as  to  the  suhject-matter  of  it,  to  every 
intent  and  purpose,  and  cannot  be  re-examined  in  a  new  action 
founded  on  evidence  which  would  have  made  a  defence  to  the  original 
suit. 

This  is  to  be  regarded  as  a  first  principle,  which  cannot  now  be 
shaken,  even  to  do  what  seems  to  he  consistent  with  justice  in  a  par- 
ticular case,  without  endangering  the  best  interest  of  society.  1  Lord 
Eavmond,  742,  and  Mariott  v.  Hampton,  and  7  T.  E.  200 ;  Philips  v. 
Hunter,  and  3  H.  Bl.  413;  White  v.  Ward  &  al.,  and  9  John.  E.  232; 

'Richardson,  C.  J.,  having  been  of  counsel,  did  not  sit  in  this  cause.  Re- 
porter. 


11*4  GREEN ABAUM  V.    ELLIOTT.  ADM'k,         [bOOK  II. 

Heller  v.  Jones,  and  4  Bin.  67;  Thatcher  &  al.  v.  Gammon,  and 
12  Mass.  Eep.  268. 

There  would  be  no  termination  of  suits,  if  parties  wlio  were  sued 
on  contracts  were  permitted  to  lie  by  and  suffer  a  judgment  by  default, 
and  then  institute  suits  to  recover  back  payments  made  on  the  contract 
on  which  judgment  had  been  so  rendered,  and  wliich  might  and  ought 
to  have  been  used  as  a  defence  in  the  original  action. 

The  reasons  for  adhering  to  the  law  on  this  subject,  as  settled, 
are  still  stronger  here  than  in  some  of  the  other  states  in  the  Union 
and  in  Great  Britair^  as  this  court  is  by  statute  authorized  to  grant 
new  trials,  even  in  cases  of  judgment  rendered  on  default,  when  it  is 
made  to  appear  that  justice  has  not  been  done  betwixt  the  parties. 

When  this  circumstance  is  considered,  the  seeming  hardship  of  the 
plaintiff's  case  disappears. 

Verdict  set  aside  and  a  neiv  trial  granted} 


GEEENABAUM  v.  ELLIOTT,  ADM'E. 

Supreme  Court  of  Missouri,  1875. 

[60  Missouri,  25.] 

One  Dewey,  administrator  of  Samuel  Taylor,  brought  suit  against 
the  plaintiff  on  a  promissory  note  given  by  the  plaintiff  to  Samuel 
Taylor.  The  plaintiff  permitted  judgment  to  be  taken  against  him 
in  that  suit  by  default.  This  judgment  was  satisfied.  The  plaintiff 
now  seeks  to  recover  back  the  sum  so  paid,  from  the  defendant,  the 
successor  of  Dewey,  alleging  payment  to  the  deceased  during  his  life- 
time.^ 

Wagner,  Judge,  delivered  the  opinion  of  the  court. 

But  the  more  conclusive  and  controlling  proposition  of  law  as  to 
the  plaintiffs,  is,  that  the  matter  has  become  res  judicata,  and  they 
are  not  at  liberty  to  dispute  the  verity  of  the  former  judgment  by 

'This  case  was  expressly  overruled  in  the  later  case  of  Snow  v.  Prescott 
(1842)  12  N.  H.  535,  but  the  two  cases  are  clearly  distinjifiiishable.  3  Smith's 
Load.  Cas.  (Oth  Am.  Ed.)  1702.  A  plaintiff,  surcessful  in  a  former  suit  for  a 
balance  due,  his  first  judjjment  having;  been  satisfied,  cannot  open  up  tlie  first 
jud<,'ment  on  the  fjround  that  notes  received  in  payment  before  the  first  suit 
was  brought,  have  since  turned  out  worthless.  (!orbet  v.  Evans  (1855) 
25  Pa.  St.  310.  Xor  can  a  judijment  debtor  recover  back  the  excess  of  the 
sum  levied  by  the  sheriff  over  the  amount  actually  unsatisfied  at  the  time  of 
the  execution.    Do  Medina  v.  Grove  (1846)   10  Q.  B.  152.— Ed. 

^A  short  statement  of  facts  has  been  substituted  for  that  given  in  the 
report. — Ed. 


CHAP.    1.]  GREENABAUM    V.    ELLIOTT,    ADM'r.  195 

which  their  liability  was  solemnly  adjudged.^  When  the  adminis- 
trator, Dewey,  commenced  the  action  on  the  note,  the  plaintiffs 
appeared  in  court  and  filed  their  joint  answer,  setting  up  payment 
as  a  defence.  They  subsequently  withdrew  that  answer,  and  permitted 
final  judgment  to  be  taken  against  them.  They  paid  the  amount  on 
execution,  and  they  cannot  now  be  allowed  to  recover  it  back.  If  the 
note  was  paid  to  Taylor  in  his  lifetime,  that  payment  constituted  a 
good  defence  to  the  action,  and  should  have  been  taken  advantage  of  at 
the  time,  and  the  failure  of  the  plaintiffs,  when  they  were  thus  sued 
and  in  court,  to  make  the  proper  defence,  conclusively  bars  them  now 
from  averring  anything  contrary  to  the  record. 

This  is  the  recognized,  and  I  might  say,  at  the  present  time,  the 
universal  doctrine.  Some  of  the  earlier  decisions  in  Massachusetts 
announced  a  different  rule,  but  they  cannot  be  supported,  and  are  not 
now  regarded  as  authority.  In  the  case  of  Kowe  v.  Smith,  16  Mass. 
306,  the  plaintiff  had  paid  $50  on  a  $-iOO  note  and  taken  a  receipt. 
Afterwards  he  was  sued  on  the  $400  note,  and  judgment  was  entered 
against  him  for  the  whole  amount.  An  action  by  the  plaintiff  to 
recover  back  the  $50  was  sustained.  Parker,  C.  J.,  stated  that  his 
first  impression  was  against  the  recovery,  but  it  was  finally  sustained 
on  the  ground  that  the  defendant  had  received  $50  which  he  was  not 
entitled  to  retain,  and  that  he  could  not  conscientiously  be  permitted 
to  keep  it. 

The  case  of  Loring  v.  Mansfield,  17  Mass.  39-4,  involves  the  same 
principle  decided  in  Rowe  v.  Smith,  with  the  difference  of  fact,  that 
in  the  former  case,  the  plaintiff  in  the  second  action  appeared  in  the 
first  and  contested  the  recovery,  but  did  not  attempt  to  prove  the 
payment  for  which  he  afterwards  brought  an  action.  The  court 
decided,  however,  that  he  could  not  recover;  the  ground  being  sub- 
stantially, that,  having  been  in  court,  he  ought  to  have  proved  his 
whole  defence  w^hen  he  had  an  opportunity. 

In  neither  case  was  there  any  actual  trial  as  to  the  payment  claimed 
to  be  recovered.  This  case,  therefore,  not  only  impairs  the  authority 
of  Rowe  V.  Smith,  but  in  fact  overrules  it. 

The  case  of  Whitcomb  v.  Williams,  4  Pick.  228,  cited  and  greatly 
relied  on  by  plaintiff's  counsel,  does  not  in  the  least  aid  him.  The 
case  went  off  on  different  grounds.  The  court  say:  "In  this  case  a 
cause  of  action  has  been  shown,  independent  of  the  judgment;  nor 
was  the  proof  of  the  judgment  at  all  material  to  the  merits  of  the 
case." 

"There  can  be  no  doubt."  says  Freemax,  "that  the  Massachusetts 
decisions  are  in  direct  conflict  with  the  true  rule  upon  the  subject, 
both  English  and  American,  and  they  were  induced  by  yielding  to 
the  hardships  of  the  particular  cases  in  which  they  were  pronounced, 

*Only  so  nuRh  of  the  opinion  is  given  as  relates  to  this  point. — Ed. 


190  GREEK ABAUM  V.    ELLIOTT.  ADM'r.   •      [BOOK  II. 

and  are  good  illustrations  of  the  maxim,  'that  hard  cases  make  bad 
precedents.'"  Freem.  Judg.  §  286;  2  Sm.  Lead.  Cas.  667.  "It  is 
clear,  that  if  there  be  a  bona  fide  legal  process  under  which  money  is 
recovered,  although  not  actually  due,  it  cannot  be  recovered  back, 
inasmuch  as  there  must  be  some  end  to  litigation."  Duke  de  Cadaval 
V.  Collins,  4  Ad.  &  El.  867. 

A  party  having  found  a  receipt  for  a  debt  which  he  had  been  com- 
pelled to  pay  by  judgment,  having  sought  to  recover  back  the  money 
paid.  Lord  Kenyon,  before  whom  the  case  came,  said :  "I  am  afraid 
of  such  a  precedent.  If  this  action  could  be  maintained,  I  know  not 
what  cause  of  action  could  ever  be  at  rest.  After  recovery  by  process 
of  law  there  would  be  no  security  for  any  person."  Marriott  v.  Hamp- 
ton, 7  T.  K.  269. 

In  the  recent  case  of  Huffer  v.  Allen,  L.  K.  2  Exch.  15,  it  was 
declared,  that,  "it  was  not  competent  for  either  party  to  an  action 
to  aver  anything,  either  expressing  or  importing  a  contradiction  to 
the  record,  which,  while  it  stands,  is,  as  between  them,  of  uncon- 
trollable verity."  To  the  same  purport  are  nearly  all  the  American 
cases.  Tilton  v.  Gordon,  1  'N.  H.  33 ;  Broughton  v.  Mcintosh,  1  Ala. 
103;  Mitchell  v.  Sanford,  11  Id.  695;  Corbet  v.  Evans,  25  Penn.  St. 
310;  Kirklan  v.  Brown,  4  Humph.  174;  Loomis  v.  Pulver,  9  Johns. 
244;  Battey  v.  Button,  13  Johns.  187. 

The  case  of  Walker  v.  Ames,  2  Cow.  428,  was  of  special  hardship. 
There  had  been  a  recovery  on  an  account  and  also  on  a  note  given  in 
settlement  of  the  same  account.  The  defendant  in  that  action  then 
sued  to  recover  back  one-half  of  the  judgment  thus  improperly  recov- 
ered. The  court  held  that  the  action  would  not  lie ;  "that  there  could 
be  no  end  to  litigation  nor  any  security  to  a  person,"  if  such  an  action 
could  be  brought. 

It  may  therefore  be  stated  as  the  established  rule,  that  where  a 
defendant  has  been  legally  in  court,  and  fails  or  neglects  to  make  his 
defence  if  he  has  one.  the  judgment  will  be  conclusive  upon  him,  unless 
he  can  show  some  ground  for  equitable  interference. 

The  court  erred  in  deciding  that  the  plaintiffs  could  maintain  their 
■action. 

In  any  view  that  we  can  take  of  the  case,  the  judgment  is  wrong, 
and  it  must  be  reversed.  The  judgment  is  reversed;  the  other  judges 
concur.^ 

'Accord:  Stephens  v.  Howe  (1879)  127  Mass.  164.  "There  are  three 
instances  in  which  a  party  may  overhaul  a  decree:  (1)  For  error  in  law 
apparent  on  its  face;  (2)  upon  discovery  of  new  matter,  and  (3)  where  the 
decree  was  obtained  by  fraud.  Coop.  Kq.  45,  9(5,  98." — Legrand  v.  Francisco, 
(1811)  3  Munf.  83,  87.  But  a  judgment  may  not  be  attacked  collaterally  for 
fraud.     Ogle  v.  Baker  (1890)   137  Pa.  St.  378.— Ed. 


CHAP.  I.]  CLARK  &  CLARK  V.    PINXEY.  197 

HOSMER  V.  BARRET,  ADM'R  OF  OLIVER  BARRET. 

Superior  Court  of  Connecticut,  1794. 
[2  Root,  15G.] 

Action  of  assumpsit,  for  £24  2s.  5d.  lawful  money,  recovered  and 
paid  in  April  A.  D.  1791,  to  said  Oliver  in  his  lifetime  on  an  execu- 
tion in  his  favor  against  the  plaintiff.  That  the  plaintiff  had  since 
obtained  a  new  trial  in  said  cause,  for  mispleading,  and  on  hear- 
ing upon  the  merits  of  said  cause,  recovered  judgment  in  his  favor, 
whereby  the  defendant  became  liable  to  refund  said  £24  2s.  5d.  recov- 
ered as  aforesaid,  and  an  action  had  accrued  to  the  plaintiff  to  recover 
the  same  with  interest. 

Plea  in  bar,  that  the  new  trial  was  granted  for  mispleading,  and 
in  the  terms  that  the  future  cost  only,  should  follow  the  final  judgment. 

Demurrer. — Judgment — Plea  insufficient,  and  for  the  plaintiff  to 
recover  said  sum  of  £24  2s.  5d.,  and  the  interest  from  the  time  of  the 
final  judgment. 


CLARK  &  CLARK  v.  PINNEY. 

Supreme  Court  of  New  York,  1826. 

[6  Coiven,  297.] 

Assumpsit  for  money  had  and  received,  tried  at  the  Onondaga 
Circuit,  September,  1825,  before  Throop,  C,  Judge. 

It  appeared  by  the  N.  P.  record  that  the  suit  was  commenced  as 
early  as  February  term,  1825.  The  declaration  contained  the  usual 
money  counts.     Plea,  7ion  assumpsit,  with  notice  of  set-off. 

On  the  trial,  the  plaintiffs'  counsel  offered  in  evidence  the  record  of 
a  judgment  in  the  Onondaga  Common  Picas  of  the  term  of  February, 
1822,  in  favor  of  the  defendant  against  the  plaintiffs,  for  $193.11; 
a  fi.  fa.  indorsed  satisfied  by  the  sheriff,  June  2L,  1822,  except  sheriff's 
fees ;  that  the  execution  was  paid  by  a  note  of  Walker  &  Clark,  by 
which  they  promised  the  defendant  to  pay  him  $181.2?  on  the  1st  day 
of  February,  1823,  with  interest,  provided  the  judgment  in  the  Com- 
mon Pleas  should  not  be  reversed  before  that  day.  That  this  was 
received  as  and  towards  payment  of  the  judgment  by  Pinney  and  his 
attorney.  The  counsel  also  offered  the  record  of  a  judgment  for 
$21G.73  in  the  Onondaga  Common  Pleas  on  this  note,  recovered  at 
May  term,  1823,  and  an  execution  returnable  at  the  next  August  term, 
which  had  been  paid  before  the  return  day,  and  was  returned  by  the 
sheriff  satisfied.    They  also  offered  an  exemplification  of  a  judgment 


198  CLARK  &  CLARK  1'.  PINNEY.  [BOOK  II. 

record  in  the  Supreme  Court  in  favor  of  the  present  phiintiffs  against 
the  present  defendant,  whereby  it  appeared  that  the  judgment  first 
above  mentioned  liad  been  reversed  on  a  writ  of  error,  at  the  October 
term,  1824.  All  these  facts  were  admitted  by  the  defendant's  counsel, 
on  whose  motion  the  judge  nonsuited  the  plaintiffs,  with  leave  to  move 
to  set  aside  the  nonsuit,  and  for  a  new  trial. 

Curia,  per  Savage,  C.  J.     The  important  question  in  this  case  is, 
whetlior  indoMtaUL&.jisswn^sit^OT_  monej^  had  and__received_lifis__t£L 
ijgoyer  money  paid  on  an  e^ficution,  Jipon  a  judgment  which_was 
altfirwards-reversedr-T 

The  general  proposition  is,  that  this  action  lies  in  all  cases  where  the 
defendant  has  in  his  hands  money  which,  ex  (Bquo  et  bono,  belongs  to 
the  plaintiff.  When  money_js  collected  upon  an  erroneous  judgment, 
which,  subsequent  to  the  payment  of  the  moh^,  is  reversed,  the  legal 
conclusion  is  irresistible,  that  the  money  belongs  to  the  person  from 
whom  it  was  collected.  Of  course  he  is  entitled  to  Tiave  it  returned 
to  him.     The  only  question  is,  whether  this  be  tlie  proper  remedy. 

The  cases  referred  to  by  counsel  do  not  fully  decide  the  point;  nor 
have  I  found  any  case  where  this  very  point  has  been  decided  except 
Green  v.  Stone,  1  Har.  &  John.  405.  It  was  raised  in  Isom  v.  Johns, 
2  Munf.  272.  There  the  defendant  had  been  plaintiff  in  a  former 
action;  recovered  judgment,  and  issued  execution,  upon  which  the 
defendant's  property  was  sold  by  the  sheriff.  On  the  argument,  most 
of  the  English  cases  which  are  now  cited  were  referred  to.  The  court 
decided  against  the  plaintiff  on  the  ground  that  the  money  did  not 
appear  to  have  come  to  the  defendant's  use ;  not  denying  the  doctrine, 
however,  that,  if  the  defendant  had  received  the  money,  the  plaintiff 
might  recover  it  in  this  action. 

In  Green  v.  Stone  this  very  point  was  decided  in  favor  of  the 
plaintiffs. 

The  principle  in  question  is  supposed  to  have  been  acted  on  in 
Feltham  v.  Terry,  Lofft,  207,  which  was  an  action  for  money  had 
and  received  by  the  churchwardens  against  the  overseers  of  the  poor, 
for  money  levied  by  the  latter,  on  a  conviction  of  one  of  the  former, 
which  was  subsequently  quashed.  The  court  held  the  plaintiff  might 
sue  for  the  money  collected  by  a  sale  of  the  property;  or,  by  bringing 
trespass,  he  might  have  recovered  the  value  of  the  property.  This 
conviction,  I  apprehend,  must  have  been  irregular ;  otherwise  the  court 
would  not  have  said  trespass  might  have  been  brought.  Trespass 
surely  wovdd  not  lie  for  collecting  the  amount  of  a  judgment  which 
was  merely  erroneous.  In  that  case,  therefore,  the  court  must  have 
acted  on  the  jorinciple  that  the  money  was  collected  by  a  void  authority. 
The  authorities  are  clear  and  abundant  thart,  in  such  a  case,  iiidctntaPilS. 
assumpsit  lies.    1  Bac.  Abr.  2('A  ;  Ncwdigate  v.  Davy,  1  Ld.  Eaym.  742. 

"Tnlhe  cascTof  Mearl  v.  Death  &  Pollard,  1  Ld."  Raym.  742,  it  was 
decided  that  money  paid  upon  an  order  of  the  Quarter  Sessions  could 


•CHAP.    I.]  CLARK    &    CLARK    V.    PINNEY.  199 

not  be  recovered  back,  though  tlie  order  had  been  quashed  on  certiorari. 
And  Thacy,  Baron,  before  whom  the  cause  was  tried,  compared  it  to 
tlie  case  where  money  is  paid  upon  a  judgment  which  is  afterwards 
reversed  for  error,  in  whicli  case  indchitalus  assumpsit  will  not  lie. 
No  reason  is  given  wliy  tliis  action  will  not  lie;  nor  is  any  case  referred 
to  in  support  of  the  dictum.  It  is  shown,  however,  that  in  the  English 
■t'ourts  the  proper  remedy,  upon  the  reversal  of  a  judgment,  is  a  scire 
fdcias  quare  restitutionem  non,  upon  which  the  party  recovers  all  that 
he  has  lost  by  reason  of  the  judgment.  Com.  Dig.  (3  B.  20)  Cro.  Car. 
i;!)9.  And  if  it  appear  on  the  record  that  the  money  is  paid,  restitution 
will  be  awarded  without  a  scire  facias.     2  Salk.  588. 

Cases  have  been  cited  in  which  it  is  said  that  tiiis  action  does  not  lie 
to  recover  money  collected  under  legal  process  afterwards  vacated, 
v.hich  is  true  as  applied  to  those  cases;  but  the  principle  is  not 
applicable  in  this  case. 

Upon  the  whole,  my  view  of  the  question  is  this :  the  general  prin- 
■ciple  is,  undoubtedly,  in  favor  of  sustaining  the  action.  Isom  v. 
Johns,  decided  by  the  court  of  appeals  of  Virginia,  is  a  plain  recog- 
nition of  the  principle  as  governing  this  very  case ;  and  Green  v.  Stone 
is  an  authority  in  point.  These  are  opposed  only  by  a  nisi  prius 
decision,  at  a  time  when  the  action  for  money  had  and  received  had 
not  come  into  general  use.  I  am  inclined  to  sustain  the  action.  The 
inclination  of  courts  is  to  extend  the  action  for  money  had  and 
n^ceived.  It  is  not  denied  that  the  plaintiff  is  entitled  to  some  remedy 
for  the  money,  though  it  was  taken  from  him  by  process  erroneous 
merely.  Then,  why  turn  him  round  from  this  simple  action  to  the 
antiquated  remedy  by  scire  facias?  I  do  not  think  the  purposes  of 
justice  require  it. 

It  is  also  contended  that  the  facts  in  this  case  do  not  amount  to 
a  payment  of  money  to  the  defendant.  A  note  was  received  by  the 
sheriff  as  payment  of  the  execution,  by  the  direction  of  the  plaintiff 
and  his  attorney.  And  the  execiition  was  returned  satisfied.  Nay, 
more;  a  judgment  has  been  obtained;  and  the  money  actually  paid 
upon  that  note.  To  what  would  the  plaintiffs  be  restored  on  a  sci.  fa.? 
To  the  money  paid  by  the  note,  as  money.  Kestitution  could  be  of 
nothing  else.  The  difficulty  in  Isom  v.  Johns  was  that  the  sheriff 
could  not  be  held  the  plaintiff's  agent.  The  facts  show  him  to  be  so 
in  this  case. 

In  my  opinion  there  should  be  a  new  trial. 

Xcir  trial  (jrautcd.'^ 

^\ccord:  Raun  r.  Reynolds  (1S()1)  IS  Cul.  27;):  Paullin<i  r.  Watson 
(1855)  2G  Ala.  205;  Ewinj,'  r.  Peck.  ih.  413;  Williams  r.  Simmons  (1853) 
22  Ala.  425;  Dupuy  v.  Roebuck  (1845)  7  Ala.  484;  but  the  first  judgment 
must  be   reversed  or   modified.     Deseret    National    Ban1n?r^?uclcoIIs    fT5T90) 

30~Neti.  T54^.      Tll£_a£fion    is    rnnilltjnjtlilblc.    nUlinngli    "p"T1    i-avni-.-i^1    r»f    t^'"    i'"^"- 

ment  the  cause  is  vemandcd  and  Is  still  ponding  in  the  primary  court.    Lazell  v. 


200  CAREY  V.  PRENTICE.  [BOOK    II. 

CAEEY  V.  PRENTICE. 

Superior  Court  of  Connecticut,  1784. 

[1  Root,  91.] 

Action  of  indebitatus  assumpsit  for  money  had  and  received  for 
the  plaintiff's  use.    Plea  non  assumpsit.    Issue  to  the  jury. 

The  case  was — In  December  A.  D.  1780  the  defendant  was  com- 
mandant of  the  Fort  at  New  London :  and  the  plaintiff  was  going  out 
with  his  vessel,  loaded  with  oats;  having  the  governor's  permit  to 
transport  them  to  Newport,  but  hjad.nat  given  bond  agreeable_±Q_the 
statute;  the  defendant  seized  the  vessel  and  cargo_:  upon  which  the 
plaintiff  gave  fhe  defendant  £145,  to  lefTiim  pass;  which  the  defend- 
ant received  and  permitted  the  plaintiff  to  pass^ithout  giving  bonds. 
Verdict  and  judgment  was  for  the  plaintiff  to  recover,  bein^uaoftev 
paid  upon  an  illegal  consideration,  and  which  the  defendant  had  no 
j-ight  to-4toldr  or  retain.^ 

Miller  (1818)  15  Mass.  207;  Sturges  v.  Allis  (1833)  10  Wend.  354.  And  so, 
of  course,  where  a  former  judgment  has  been  reversed,  and  upon  a  new  trial 
judgment  has  been  entered  for  the  defendant.  Traveller's  Ins.  Co.  v.  Heath 
(1880)  95  Pa.  St.  333;  Hamilton  v.  Aslin  (1834)  3  Watts,  222,  thpiighjnoney 
voluntarily  paid  on  a  void  judgment  subsequently  reversed  cannot  be  recovgoifid. 
Soukl  V.  McFairTr8^TlTS"TParStr?557~S7TrT"Aji^St.  Reps.  600  and  note. 

Where  the  record  defendant  was  only  a  nominal  party,  and  the  real  de- 
fendant had  paid  the  judgment,  it  was  held  an  action  would  lie  by  the  latter 
to  recover  the  money  so  paid,  the  first  judgment  having  been  reversed.  Stevens 
V.  Fitch  (1846)  11  Met.  248;  Dennett  v.  Xevers  (1831)  7  Greenl.  399.  The 
action_also  lies  against  the  real  plaintiff  in  the  action  although  a  nominal 
plaintiff  prosecuted  the  suit.  IMaghee  ik  Kellogg  (1840)  24  Wend.  32.  Indeed, 
it  has  been  said  under  similar  conditions  that  an  action  at  law  can  be  sus- 
tained by  him  only  in  whom  the  legal  interest  in  the  subject  matter  of  the  suit 
is  vested.  Sanford  i'.  Nichols  (1841)  14  Conn.  324.  See  also  Garr  v.  Martin 
(1859)   20  N.  Y.  306. 

"On  the  reversal  of  the  judgment,  the  law  raises  an  obligation  in  the  party 
to  the  record,  who  has  received  the  benefit  of  the  erroneous  judgment,  to 
make  restitution  to  the  other  party  for  what  he  has  lost;  and  the  mode  of 
proceeding  to  effect  this  object  must  l)e  regulated  according  to  circumstances. 
Sometimes  it  is  done  by  a  writ  of  restitution,  without  a  scire  facias;  when 
the  record  shows  the  money  has  been  paid,  and  tliere  is  a  certainty  as  to  what 
has  been  lost.  In  other  cases,  a  scii~e  faciii.t  may  bo  necessary,  to  ascertain 
what  is  to  be  restored.  2  Salk.  587,  588;  Tidd'.s  Pract.  936,  1137,  1138.  And, 
no  doubt,  circumstances  may  exist,  wliere  an  action  may  be  sustained  to 
recover  back  the.  money.  6  Cow.  297.  Put  as  it  respects  third  persons, 
whatever  has  been  done  under  the  judgment,  wliilst  it  remained  in  full 
force,  is  valid  and  binding.     A  contrary  doctrine  would  be  extremely  incon- 

*Cf.  Edmonson  v.  Popkin  (1798)   1  B.  &  P.  270.— Eu. 


CHAP,    I.]  RICHARDSON    V.   DUNCAN.  201 

EICHAKDSON  v.  DUNCAN. 

Superior  Court  of  Judicature  of  New  Hampshire,  1836. 

[3  New  Hampshire,  508.] 

Assumpsit  for  $62.50,  money  had  and  received  by  the  defendant 
for  the  use  of  the  plaintiff. 

The  cause  came  on  for  trial  here,  upon  the  general  issue  at  May 
term  1826,  when  the  plaintiff's  counsel  stated  his  case  to  be  as  fol- 
lows: On  the  8th  of  April,  1825,  the  defendant  made  a  complaint  to 
a  justice  of  the  peace  against  the  plaintiff,  and  his  son,  Joseph  Rich- 
ardson, charging  them  with  tearing  down  and  burning  a  house  and 
barn;  and  on  the  same  day  a  warrant  was  issued,  by  the  justice, 
against  the  said  Nathan  and  Joseph,  and  was  delivered  to  a  deputy 
sheriff  by  the  defendant,  who  employed  two  persons  to  attend  the 
deputy,  and  aid  him  in  securing  the  prisoners.  That  the  said  Joseph 
and  Nathan  were  arrested  immediately,  and  carried  before  the  said 
justice  for  examination.  They  requested  time  to  send  for  counsel ; 
but  the  defendant  refused  to  have  the  examination  delayed  for  that 
purpose.  The  examination  proceeded,  and  the  evidence  was,  that  the 
plaintiff  and  his  son,  quietly  and  peaceably,  openly  and  publickly,  took 
down  an  old  house  and  barn,  which  stood  on  the  ]ilaintiff's  land;  and 
that  all  the  timber  and  boards  of  any  value  were  caiv Tilth  piled  up ; 
and  that  some  refuse  boards  and  shingles  were  burned.  The  justice 
ordered  the  plaintiff  and  his  son  to  recognize  for  their  appearance 
at  the  next  superior  court,  in  the  sum  of  $500,  each,  with  sureties. 
During  the  examination,  and  afterwards,  the  defendant,  and  others, 
represented,  that  the  said  Nathan  and  Joseph  would  have  to  go  to  the 
state's  prison;  and  this  impression  was  created  to  such  a  degree,  that 
they  found  it  impossi])le  to  procure  sureties  for  their  appearance  at  the 
superior  court.  Wliilo  the  justice  was  making  out  a  mittimus,  the 
defendant  told  tbn  p]Miiitiff_imi:lJiisLann_^tlmt^they  had  bettcx,g£ltl'?  the 
nlatter,  and  offered  to  drop  the  prosecutionfor  $125 :  and  to  this  they, 
uaabTc  to  procure  sureties,  asaentfid.  Wher£iij>on  the  plaintiff  turned 
out  goods  of  the  value  of  $62.50,  which  the  defendant  received  in  pliy- 

venient,  and  in  a  great  measure  tie  up  proceedings  under  a  jxidgmont.  during 
the  whole  time  within  wliich  a  writ  of  error  may  be  brought.  If  the  bare 
notice  or  dcchiration  of  an  intention  to  bring  a  Avrit  of  error  will  invalidate 
what  is  afterward  done,  should  the  judgment,  at  any  future  day.  be  reversed, 
it  would,  virtually,  in  many  cases,  amount  to  a  stay  of  proceedings  on  the 
execution.  Xo  such  lulc  is  uccessarv  for  tlio  protection  of  the  rights 
of  iiartics:  tlic  will  of  eiror  may  be  so  taken  out  as  to  operate  as  a 
f<uiu'rs(il<(is :  or.  if  a  i)ro)ier  case  <'an  l>e  made  for  the  interference  of  a  court 
of  cliancery.  tlie  execution  may  be  stayed  by  injunction.''  Bank  of  U.  S.  V. 
llaiik  of  Wasliingtuii   (1832)  6  Peters,  8,  17. — Ed. 


203  RICHARDSON    V.    DUNCAN.  [BOOK    II. 

ment  of  that  sum;  and  the  prosecution  was  dropped,  and  no  further 
proceedings  had.  After  this,  the  defendant  declared,  that  he  did  not 
know,  that  the  jDrosecution  could  have  been  maintained ;  but  he  meant 
to^get  as  much  out  of  them,  as  the  house  was  worth,  and  that  jwas  all 
he  cared  for.  The  defendant  sold  the  goods  he  received  before  the 
commencement  of  this  action. 

The  court,  under  an  impression,  that  this  action  could  not  be  main- 
tained upon  these  facts,  dixecied  a  nonsuit,  subject  to  the  opinion  of 
tlie  court,  upon  the  case  above  stated. 

H.  Huhhard,  for  the  defendant. 

J.  Parker,  for  the  plaintiff.  The  defendant  has  received  the  prop- 
erty of  the  plaintiff,  and  converted  that  property  into  money.  It  was 
obtained  without  any  consideration,  by  fraud,  extortion,  and  duress. 
An  action  for  money  had  and  received  will  lie  to  recover  money 
obtained  from  any  one  by  extortion,  imposition,  or  oppression.  Bates 
V.  N.  Y.  Insurance  Company,  1  Johnson's  cases,  240;  Astley  v. 
' Reynolds,  2  Strange,  915;  Williams  r.  Hedley,  8  East,  378;  Irving  v. 
Wilson,  4  D.  &  E.  485;  Clinton  v.  Strong,  9  Johns.  370;  Eipley  v. 
Gelston,  ib.  201 ;  Snowdon  v.  Davis,  1  Taunt.  359 ;  Moses  v.  Mac- 
ferlan,  2  Burrow,  1005;  Smith  v.  Broomlay,  Doug.  696,  note;  Wheaton 
V.  Hibbard,  20  Johns.  293;  Lovell  v.  Simpson,  3  Esp.  N.  P.  C.  153; 
Frje  V.  Lockwood,  4  Cowen,  454 ;  Watkins  v.  Baird,  6  Mass.  Rep.  506 ; 
Collins  V.  Westbury,  2  Bay's  Rep.  211;  Bac.  Ab.  "Duress,"  A.; 
2   Starkie's  Evidence,   505. 

It  is  not  necessary,  in  order  to  maintain  this  action,  to  shew,  that  the 
defendant  has  received  money.  It  is  sufficient  to  shew,  that  he  has 
received  an  equivalent  for  money,  or  money's  worth — it  is  sufficient, 
that  he  has  received  something,  which  has  represented  money,  and 
done  the  office  of  money.  Willie  v.  Green,  2  N.  H.  Rep.  335  ;  Danforth 
V.  Dewey,  3  N.  H.  Rep.  79;  Hemmenway  v.  Bradford,  14  Mass.  Rep. 
121 ;  Randall  v.  Rich,  11  Mass.  Rep.  494. 

But,  in  this  case,  the  goods  having  been  converted  into  money,  by  the 
defendant,  the  proceeds  Avould  be  money  in  his  hands,  so  as  to  sustain 
this  action,  if  there  was  any  doubt  on  the  other  point.  Chauncey  v. 
Yeaton,  1  :N'.  H.  Rep.  154;  1  Chitt.  PL  90 ;  Webber  v.  Aldrich,  2  N.  H. 
Rep.  462 ;  Foster  v.  Stewart,  3  M.  &  S.  198 ;  LaViine  v.  Dorrell,  2  L. 
Raymond,  1216 ;  2  Comyn  on  Con.  18;  King  v.  Leith,  2  D.  &  E.  141 ; 
Harrison  v.  Walker,  Peake's  cases,  111;  Abbots  v.  Barry,  2  Brod.  & 
Bing.  369. 

The  parties,  in  tliis  case,  arc  not  in  pari  delicfo,  so  that  the  money 
is  to  be  left  in  the  hands  of  the  defendant,  on  that  ground,  he  having, 
by  means  of  a  groundless  prosecution,  taken  undue  advantage  of  the 
ignorance  and  fears  of  the  plaintiff.  There  can  be  no  compounding 
of  a  felony,  when  none  has  been  committed.  Clark  v.  Shee,  Cowp. 
197;  Smith  v.  Bromley,  Doug.  697;  Wheaton  v.  Hibbard,  20  Johns. 
293. 


CHAP.    I.]  RICHARDSON    V.    DUNCAN.  203 

All  the  authorities  agree,  that,  when  a  party  is  overreached,  de- 
frauded, or  oppressed,  or  where  an  undue  advantage  is  taken  of  his 
situation,  he  is  not  to  be  considered  in  pari  delicto;  and  the  rule  of 
potior  est  conditio  possidentis  is  not  to  be  applied.  He  is  in  such  a 
case  to  be  viewed  rather  as  the  victim  of  the  other  party,  than  as  a 
particeps  criminis. 

The  evidence  offered  in  this  case,  exhibits  a  gross  perversion  of  the 
criminal  process  of  the  state,  which,  we  think,  calls  loudly  for  remedy. 
And  this  action  is,  in  our  belief,  well  adapted  to  give  proper  relief. 
If  the  defendant  has  money,  which  ex  cequo  et  bono  the  plaintiff  is 
entitled  to  recover,  we  trust,  that  the  court  will  not  turn  us  round,  to 
another  action,  after  we  have  expended  double  the  amount  of  the  sum 
claimed,  unless  it  be  absolutely  necessary. 

Richardson,  C.  J.,  delivered  the  opinion  of  the  court. 

We  had  an  impression,  when  this  case  was  opened,  upon  the  trial 
before  the  jury,  that,  the  plaintiff  being  in  custody  by  virtue  of  a 
M^arrant  in  due  form  of  law,  the  contract,  he  made  with  the  defendant, 
could  not  be  considered  as  made  by  duress,  so  as  to  render  it  void; 
and  on  this  ground  a  nonsuit  was  directed.  But,  upon  an  attentive 
examination  of  the  authorities  cited  by  the  plaintiff's  counsel,  we 
are  now  convinced,  that  our  impressions  were  erroneous,  and 
that  the  case  of  the  plaintiff  ought  to  have  been  submitted  to  the 
jury^.    '  "  ~  ~  - 

The  only  case,  which  we  have  found  to  justify  a  nonsuit,  under  the 
circumstances  of  this  cause,  is  the  one  in  1  Lev.  68,  which  was  an 
audita  quSreld  on  a  release  given  after  judgment ;  and  the  question 
was,  whether  the  release  was  made  by  duress  ?  The  evidence  was,  that 
the  defendant,  not  having  good  cause  of  action,  caused  the  plaintiff 
to  be  arrested,  and  detained  in  prison,  till  he  made  the  release,  with 
menaces,  that  he  should  lie  in  prison  and  rot,  if  he  would  not  seal  a 
release;  and  Bridgman,  C.  J.,  held,  that  he  being  in  custody  of  the 
law,  by  the  King's  writ,  it  was  not  any  duress,  to  be  pleaded  in  avoid- 
ance of  the  deed.  But  he  offered  to  have  it  found  specially;  if  the 
plaintiff's  counsel  requested  it ;  but  he  did  not  request  it. 

But  it  is  now  well  settled,  that  when  there  is  an  arrest  for  improper 
purposes,  without  a  just  cause;  ox-where  there  is  an  arrest  for  a  just 
cause;  but  without  lawful  authority_i  or  where  there  is  an  arrest  for_a 
jusTcaiTse,  and  under  lawful  authority,  for  unlawful  purposes»_itJlUiy 
be  construed  a  duress.  Buller's  N.  P.  172 ;  Watkins  v.  Baird,  6  Mass. 
EepTsOG;  ConT:TJig.  "Pleader,"  2  W.  19;  1  Rolle's  Ab.  687. 

We  are  therefore  of  opinion,  that  the  nonsuit  in  this  case  must  j)e 

set  aside,  and  the  cause  stand  for  trial. ^ 

^TAccord:    Duke  de  Cadaval  r.  Collins   (1830)   4  Ad.  &  E.  858. 

A   threat  that   an   arrest _would^be__niade   unless   ascertain   license   was 

paid,  the  ordinance  as=esisinfr  it  beinjj  afterwards  declared  voi37~wa5  held  not 

to  constitute _durp><.    P.ollinger  v.  Gettysburg  Borough  (1889)  6  Pa.  Co.  Kep. 


204  PRESTON    V.    THE    CITY   OF   BOSTON.  [BOOK   II. 

CHANDLER  v.  SANGER. 

Supreme  Judicial  Court  of  Massachusetts,  1874! 

[114  Massachusetts,  364.] 

See  ante,  p.  183  for  a  report  of  the  case. 


PRESTON  V.  THE  CITY  OF  BOSTON. 

Supreme  Judicial  Court  of  Massachusetts,  1831. 

[12  Pickering, '7.] 

Assumpsit  to  recover  $711.50,  money  had  anv..  received  to  the  use 
of  the  plaintiff,  being  the  amount  of  a  tax  assessed  upon  him  for  the 
year  1838,  for  his  poll  and  personal  estate,  and  by  him  paid  to  the 
treasurer  and  collector  of  the  city  of  Boston. 

At  the  trial,  before  Wilde,  J.,  it  was  proved  that  the  plaintiff,  with 
his  wife,  had  lived  at  board  in  Medford  several  years,  and  had  been 
taxed  there  four  years  preceding  1828,  and  also  that  year,  and  that  on 
the  1st  of  May,  1828,  one  of  the  assessors  of  Medford  saw  him  there, 
at  the  house  of  his  son-in-law,  with  whom  he  and  his  wife  were  then 
boarders.  The  plaintiff  was  usually  in  Boston  some  days  every  three 
or  four  weeks,  where  his  principal  business  was  the  taking  care  of  his 
property,  consisting  chiefly  of  public  stocks  and  money,  and  on  those 
occasions  he  boarded  with  a  son-in-law  who  resided  there ;  and  the 
early  part  of  the  month  of  May,  1828,  the  plaintiff  passed  in  Boston. 

It  was  not  questioned  on  the  part  of  the  defendants  that  the  plaintiff 
had  his  residence  in  Medford  and  was  liable  to  be  taxed  there  in  the 
year  1828.  The  defence  set  up  was,  that  he  had  requested  the  assessors 
of  Boston  to  tax  him  there  by  the  following  note  addressed  to  them. 
"Boston,  Couch  Street,  May,  1838.  You  will  please  to  be  informed 
that  I  am  a  boarder  at  my  son's,  E.  D.  Clarke,  and  you  are  requested 
to  assess  me  this  year  a  light  tax  for  personal  estate;  trusting  in  your 
prudence  and  moderation,  it  is  my  wish  in  future  to  pay  a  light  tax 
to  this  city." 

369;  nor  does  a  threat  to  make  a  lawful  arrest  unless  money  properly  due  is 
paid.  "Eddy  v.  Ilerrin   (1840)    17  Me.  338. 

McaLOy^Jiaid  to  obtain  a  release  from  an  arrest  made  by  lawful  authority, 
for  a  just  cause,  but  for  an  improper  purpose^"  may "be'reeovered.  Severance  v. 
Kimball    (1836)   8  K  H.  ^86.— E&.  ^ 


CHAP.    I.]  TRESTON    V.    THE    CITY    OF    BOSTON.  205 

The  ijlaintiff  was  the  owner  of  real  estate  in  Boston,  for  which  he 
admitted  that  he  was  regularly  taxed  in  1828.  The  taxes  of  that  year 
were  committed  to  ]\Iackay,  the  treasurer  and  collector,  on  the  1st  of 
November,  and  he  soon  gave  notice  to  the  plaintiff  of  his  being  taxed 
in  Boston,  and  of  the  amount  of  his  tax,  with  the  time  when  payment 
would  be  required.  On  the  20th  of  December,  1828,  the  plaintiff 
called  upon  ilackay,  paid  the  tax  on  his  real  estate,  and  then  objected 
to  the  tax  on  his  poll  and  personal  estate  as  being  an  illegal  assess- 
ment, saying  that  he  was  taxed  wrongfully,  that  he  had  been  taxed 
in  Medford  for  his  poll  and  personal  estate  for  1828,  and  had  already 
paid  his  taxes  there.  Mackay  replied  that  if  Jie  did  not  pay  at  the^Hne- 
limited,  a  warrant  of  distress  niustheTissAied  against  Jjini^jmless  he 
Q^tSin^dr-an^batement.  The  plaintiff  thereupon  petitioned  the  mayor 
and  aldermen  of  tlie^city  for  an  abatement  of  his  tax,  which  being 
refused,  he  paid  the  amount  to  Mackay  on  the  17th  of  January,  1829. 

Upon  these  facts  such  judgment  Avas  to  l)e  rendered,  upon  nonsuit 
or  default,  as  the  whole  court  should  direct. 

Shaw,  C.  J.,  delivered  the  opinion  of  the  court. 

The  only  remaining  question  is,  whether  this  money  was  paid  vol- 
untarily or  under  duress.^  Aj) arty  who  has  paicLxoluntarily  under 
a  claim  of  J2£^it  shall  not  afterwards  recover  back  the  money,  although 
he  protested  at  the  time  against  his  liability.  The  reason  of  tlTis  is 
obvious.  The  party  making  the  demand  may  know  the  means  of 
proving  it,  which  he  may  afterwards  lose;  and  because  another  course 
would  put  it  in  the  power  of  the  other  party  to  choose  his  own  time 
and  opportunity  for  commencing  a  siiit.  Brisbane  v.  Dacres,  5  Taunt. 
143.  But  it  is  otherwise  when  a  party  is  compelled  by  duress  of  his 
person  or~goods  to  pay  money  for  which  helg^^nof  liabfe;  it  is 'not 
voluntary  but  compulsory,  and  he  may  rescue  himself  from  such  duress 
by  payment  of  the  money,  and  afterwards,  on  proof  of  the  fact, 
recover  it  back.    Astley  v.  Reynolds,  2  Str.  916. 

What  shall  constitute  such  duress,  is  often  made  a  question.  Threat 
of  adistress  for  rent  is  not  such.  dui£ss,  because  the  party  may  replevy 
the  goods  distrained  and  try  the  question  of  liability  at  law.  Knibbs  v. 
Hall,  1  Esp.  84.  Threat  of  legal  process  is  not  such  duress,  for  the 
party  mavjlead.  and  make^  proof,  and  show  that  he  is  not  Ijable. 
Brown  v.  M'Kinally,  1  Esp.  279.  But__the  warrant  to  a.. colle^or, 
undoLOilL^tatute  for  the  assessment  and  collection  of  taxes,  is  in  the 
nature  of  an  execution,  running  against  the  person  anjiproj^crty^f 
tlig_^party,  upon  which  he  has  no  day  in  court,  no  opportunity  to  plead 
and  oflfcx_pwM>f,  and  have  a  judicial  decision  of  the  questiomrf"  4iis 
liability.  Where,  therefore,  a  party  not  liable  to  taxation  is  called 
on  peremptorily  to  pay  upon  such  a  warrant,  and  lie  can  save  himself 
and  his  property  in  no  other  way  than  by  paying  the  illegal  demaiul.  he 

'Only  so  much  of  the  opinion  is  given  as  relates  to  this  question. — Ed. 


206  PRESTON    V.    THE    CITY    OF    BOSTON.  [BOOK    II. 

may  give  notice  that  he  so  pays  it  by  duress  and  not  voluntarily, 
and  by  showing  that  he  is  not  liable  to  recover  it  back  as  money 
had  and  received.  Amesbury  W.  &  C.  Manuf.  Co.  v.  Amesbury, 
17  Mass.  461. 

It  appears  by  the  facts  agreed  that  upon  the  first  notice  of  the  tax, 
the  plaintiff  applied  to  the  treasurer  and  collector,  setting  forth  his 
specific  ground  of  objection,  namely,  that  he  was  not  an  inhabitant 
and  not  liable  to  the  tax  on  personal  property.  The  plaintiff  was 
informed  by  the  collector  that  he  had  no  discretion  on  the  subject, 
and  unless  he  obtained  an  abatement  a  warrant  of  distress  would  issue 
against  him.  He  then  applied  to  the  city  government,  stated  the 
grounds  of  his  objection,  and  remonstrated  against  the  tax;  but  they 
decided  that  the  tax  must  be  paid,  of  which  the  collector  was  duly 
informed.  The  law  under  which  the  treasurer  and  collector  acted 
obliged  him  to  issue  a  warrant,  under  which  the  person  and  property 
of  the  phiintiff  would  have  been  lialile  to  be  taken,  and  that  officer  had 
notified  him  that  such  warrant  would  be  issued.  Under  these  circum- 
stances the  money  was  paid,  and  we  tMnk_  it  cannot  be  considered  as 
a  Hiluntary  paymejit,  but  a  payment  made  under  such  circumstances 
of  constraint  and  compulsion,  and  with  such  notice  on  his  part  that  it 
was  so  paid,  that  on  showing  that  he  was  not  liable  he  may  recover  it 
back  in  this  action  from  the  defendants,  into  whose  treasury  it  has 
gone. 

Defendants  defaulted} 

'Accord:  Atwell  v.  Zeluflf  (1872)  26  Mich.  118;  Parcher  v.  Marathon  Co. 
(1881)  52  Wis.  388.  For  subsequent  interpretations  of  the  principal  case, 
see  Dorr  v.  Boston  (1856)  6  Gray,  131;  Lincoln  v.  Worcester  (1851)  8  Cush. 
55,  62;  Bates  v.  Boston  (1849)  5  Cush.  93,  97;  Harrington  v.  Glidden  (1901) 
179  Mass.   486,  494. 

A  judgment  debtor  paying  after  judgment  entered  or  adjudication  made, 
but  before  execution,  pays  under  duress.  Scholey  v.  Halsey  (1878)  72  N.  Y. 
578. 

"When,  however,  the  payment  is  made  in  obedience  to  the  judgment  of  a 
court  which  liad  determined  that  he  must  pay  it,  and  that  his  adversary 
had  the  right  to  demand  it  of  him,  and  subsequently  a  legal  tribunal  of  com- 
petent authority  adjudges  that  the  first  judgment  was  erroneous,  and  there- 
fore vacates  and  reverses  it,  the  conclusion  is  irresistible  that  the  plaintiff 
in  the  first  judgment,  if  he  has  received  its  amount,  has  received  what  he  is 
equitably  and  justly  bound  to  restore."     Lott  v.  Swezey   (1859)    29  Barb.  87. 

A  threat  of  a  judgment  creditor,  to  obtain  satisfaction  by  a  levy  on  jthe 
property  of  th^cr  JTnligment  Tiebtor,  is  not  voidable  duress.  Wilcox  v.  Howland 
(1839)    23  Pick.   167.— Ed. 


^  7^1' 


CHAP.    I.]         MAYOR,   ETC.,  OF  BALTIMORE  V.   LEFFERMAN.  207 

MAYOR,  ETC.,  OF  BALTIMORE  v.  LEFFERMAN. 

Court  of  Appeals  of  Makylaxd,  1840. 
[4  Gill's  Maryland  Reports,  425.] 

Appeal  from  Baltimore  county  court. 

This  was  an  action  of  assumpsit,  brought  to  May  term  1844,  by  the 
appellee  against  the  appellant ;  to  recover  a  sum  paid,  laid  out  and 
expended  by  him,  to  and  for  the  defendant,  &c.  The  defendants 
pleaded  non  assumpsit,  and  the  verdict  was  for  the  plaintiff. 

The  legislature  of  Maryland  by  an  act  of  Feb.  23,  1882,  authorized 
the  city  of  Baltimore  to  compel  parties  owning  property  binding  on 
Jones  Falls,  to  wall  up  such  property  "in  such  manner  as  the  corpo- 
ration may  by  ordinance  direct."  By  ordinance  the  mayor  and  city 
council  of  Baltimore  directed  the  city  commissioners  to  notify  the 
property  owners  to  build  such  walls  and  provided  that  in  case  such 
walls  were  not  built  as  directed,  the  commissioner  might  contract  and 
have  the  same  built,  and  then  levy  on  the  property  for  the  expense 
as  for  a  tax.  The  appellee  being  notified  to  build  the  wall  and  of  the 
terms  of  the  ordinance,  constructed  the  wall  and  then  brought  assump- 
sit against  the  city  to  recover  the  money  so  expended.  He  alleged, 
first,  that  the  legislative  act  authorizing  the  improvement  was  uncon- 
stitutional ;  secondly,  that  his  expenditure  in  the  matter  was  in- 
voluntary.^ 

Martin,  J.,  delivered  the  opinion  of  the  court. - 

Upon  the  question  raised  by  the  plaintiff's  first  prayer,  that  which 
respects  the  validity  of  the  first  section  of  the  act  of  Assembly  of  1821, 
chap.  252,  this  court  is  equally  divided  in  opinion.  The  opinion  of 
tiie  county  court  pronouncing  this  statute  to  be  unconstitutional  and 
void,  stands  affirmed;  and  the  requisition  imposed  upon  the  appellee, 
to  construct  a  wall  on  his  property  binding  on  the  Falls,  by  the 
ordinance  to  which  we  have  adverted,  must  be  regarded  as  unauthorized 
and  illegal. 

This  presents  for  our  examination,  the  proposition  embodied  in  the 
plaintiff's  second  prayer: — That  assuming  that  the  expenditure  in 
question,  was  marie  by  the  plaintiff  in  consequence  of  the  notices 
exhibited  in  evidence,  and  in  ol)edience  to  the  orflinance  under  which 
such  notices  were  given, — an  ordinance  passed  in  the  exercise  of  a 
power,  not  lawfully  delegated  to  the  defendants: — that  an  expendi- 
ture made  under  such  circumstances,  is  to  be  considered  as  compulsory 
in  its  character,  and  entitled  the  appellee  to  reclaiui  from  the  appel- 
lants, the  money  expended  for  their  use  and  Iienefit. 

'A  short  statement  of  facts  is  suhstitutod  for  that  given  in  the  report. — Ed. 
^A  part  only  of  the  opinion  is  ^iven. — En. 


208  MAYOR,  ETC.^   OF  BxVLTIMOEE  V.   LEFFERMAN.  [BOOK    II. 

It  is  now  established,  by  an  unbroken  series  of  adjudications  in  the 
English  and  American  courts,  that  where  money  is  voluntarily 
and  fairly  paid,  with  a  full  knowledge  of  the  facts  and  circum- 
stances under  which  it  is  demanded,  it  cannot  be  recovered  back 
in  a  court  of  law,  upon  the  ground,  that  the  payment  was  made 
under  a  misapprehension  of  the  legal  rights  and  obligations  of  the 
party. 

In  the  case  of  Brisbane  v.  Dacres,  5  Taunt.  151,  Gibbs,  Justice, 
when  examining  this  subject,  says : — 

"^Ye  must  take  this  payment  to  have  been  made  under  a  demand 
of  right,  and  I  think,  that  where  a  man  demands  money  of  another, 
as  a  matter  of  right,  and  that  other,  with  a  full  knowledge  of  the 
facts  upon  which  the  demand  is  founded,  has  paid  a  sum,  he  can  never 
recover  back  the  sum  he  has  so  voluntarily  paid.  It  may  be,  that 
upon  a  further  view  he  may  form  a  different  opinion  of  the  law,  and 
it  may  be,  his  subsequent  opinion  may  be  the  correct  one.  If  we  were 
to  hold  otherwise,  many  inconveniences  may  arise;  there  are  many 
doubtful  questions  of  law:  when  they  arise,  the  party  has  an  option, 
either  to  litigate  the  question,  or  to  submit  to  the  demand,  and  pay 
the  money.  I  think,  that  by  submitting  to  the  demand,  he  that  pays 
the  money,  gives  it  to  the  person  to  whom  he  pays  it,  and  makes  it  his, 
and  closes  the  transaction  between  them." 

The  opinion  and  reasoning  of  Gibbs,  Justice,  in  this  case,  is  cited, 
with  approbation,  in  Elliott  v.  Swartwout,  10  Pet.  154,  as  containing 
a  correct  exposition  of  the  law  on  this  question;  and  the  Supreme' 
Court  held : — 

"That  in  case  of  a  voluntary  payment,  by  mere  mistake  of  law,  no 
action  will  lie  to  recover  back  the  money.  The  construction  of  law. is 
open  to  both  parties,  and  each  is  presumed  to  know  it."  The  same 
doctrine  is  announced  in  Clarke  v.  Dutcher,  9  Cow.  674,  and  Mowatt  v. 
Wright,  1  Wend.  355,  and  is  too  firmly  settled  to  be  questioned  or 
disputed. 

As  it  is  evident,  that  the  expenditure  was  made  in  this  case  by 
the  plaintiff,  with  a  full  knowledge  of  all  the  facts  accompanying  the 
transaction,  and  in  obedience  to  a  demand,  fairly,  although  illegally 
madOj  by  the  defendants;  the  mere  circumstance,  that  he  was  at  the 
time  ignorant  of  his  legal  rights,  does  not  autliorize  a  reclamation 
of  the  money  expended;  and  the  counsel  for  the  plaintiff  has  placed 
liis  right  to  recover,  on  the  ground,  that  from  the  circumstances  of  the 
case,  the  jury  were  warranted  in  finding,  tliat  lie  had  expended  the 
money,  not  voluntarily,  but  under  the  compulsion  of  the  defendants, 
in  their  exercise  of  an  unauthorized  power. 

It  is  not  pretended,  that  the  defendants  are  justly  chargeable  with 
having  procured  this  expenditure,  through  the  instrumentality  of 
fraud  or  imposition. 

Or  that  the  defendants  took  an  undue  advantage  of  the  situation 


CHAP.    I.]        MAYOR,    ETC.,    OF    BALTIMORE    V.    LEFFERMAN.  209 

of  the  plaintifT,  for  the  purpose  of  extorting  from  him  the  perform- 
ance of  this  work. 

As  in  Pigot's  case,  cited  hy  Lord  Kenyon,  in  Cartwright  v.  Rowley, 
2  Esp.  723,  where  an  action  was  hrought  to  recover  back  money  paid 
to  a  steward  of  a  manor,  for  producing  at  a  trial  some  deeds  and  court 
rolls,  and  for  which  he  had  charged  extravagantly.  And  the  objection 
being  taken,-  that  tlie  money  had  been  voluntarily  paid,  it  was  held, 
that  the  money  being  paid  tlirough  necessity,  and  the  urgency  of  the 
case,  was  recovera])le. 

But  the  right  to  nuiintain  this  action,  so  far  as  this  branch  of  the 
case  is  concerned,  turns  on  the  question,  whether,  assuming  the  facts 
asserted  in  the  prayer  to  be  true,  the  circumstances  under  which  the 
expenditure  was  nuide,  impressed  upon  it  the  character  of  a  com- 
pulsory payment  of  money,  as  that  term  is  legally  understood  and 
applied. 

Upon  this  branch  of  the  law,  numerous  cases  are  to  be  found,  l)ut 
it  is  proposed  to  refer  only  to  a  few  of  these,  of  unquestionable 
authority,  and  which  are  most  analogous  to  the  one  under  con- 
sideration. 

In  Knobbs  v.  Hall,  1  Esp.  Rep.  84,  a  case  frequently  recognized, 
and  in  1840,  by  Lord  Denman,  in  Skeate  v.  Beale,  11  Adol.  &  El.  983, 
an  action  of  assumpsit  was  instituted  for  the  use  and  occupation  of 
certain  rooms  in  the  Citj/  Chambers.  One  article  of  the  set-off,  which 
the  defendant  proposed  to  give  in  evidence,  was  as  follows: — 

"The  defendant  being  indebted  to  plaintiff,  for  other  cli ambers, 
which  he  then  occupied.  The  plaintiff  demanded  payment,  at  the  rent 
of  twenty-five  guineas  per  year.  The  defendant  insisted  that  he  had 
taken  them  at  twenty  guineas  per  year,  only,  and  offered  to  pay  at 
that  i-ate.  The  plaintiff  refused  to  take  it,  and  threatened  to  distrain 
if  not  ])aid  at  the  rate  of  twenty-five  guineas;  and  the  defendant,  in 
order  to  avoid  the  distress,  paid  at  that  rate ;  and  having  proved  that 
the  chambers  were  really  let  at  twenty  guineas,  proposed  to  set  off  the 
overplus,  as  paid  by  compulsion :  But  Lord  Kenyox  held,  that  this 
could  not  be  deemed  a  payment  l)y  compulsion,  as  the  defendant  might 
have,  by  a  replevin,  defended  himself  against  the  distress;  and  that 
after  a  voluntary  payment,  so  made,  he  should  not  be  allowed  to  dis- 
pute its  legality." 

In  the  case  of  Fullam  v.  Down,  6  Esp.  26,  note.  Lord  Kexyox,  when 
considering  this  subject,  announced: — 

"That  where  a  voluntary  payment  was  made  of  an  illegal  demand, 
without  an  immediate  and  urgent  necessity,  or  to  redeem  your  person 
or  your  goods,  it  is  not  the  subject  of  an  action  for  money  had  and 
received.  The  law,  if  so  held,  would  subject  all  accounts  and  settle- 
ments between  parties,  to  revision."  The  opinion  appears  to  be 
qualified  by  the  remark :  "the  party  knowing  the  demand  to  be 
illegal."    But  the  character  of  the  payment  never  depends,  as  we  have 


210  MAYOR,  ETC.,   OF  BALTIMORE   V.   LEFFERMAN.         [BOOK    II. 

seen,  on  the  knowledge  of  the  party,  and  if  voluntary,  it  is  Ijinding, 
although  made  under  the  impression,  that  the  demand  was  legal. 

The  same  position  is  maintained,  in  Shaw  v.  Woodcock,  7  Bar.  & 
Ores.  73,  where  it  was  adjudged:  That  a  payment,  made  in  order  to 
obtain  possession  of  goods  or  property  to  which  a  party  is  entitled, 
and  of  which  he  cannot  otherwise  obtain  possession  at  the  time,  is  a 
compulsory,  and  not  a  voluntary  payment,  and  may  be  recovered  Ijack. 

And  Bayley,  Justice,  in  discriminating  between  a  voluntary  and 
compvdsory  payment,  says: — 

"If  a  party  has  in  his  possession,  goods  or  property  belonging  to 
another,  and  refuses  to  deliver  such  property  to  that  other,  unless  the 
latter  pays  him  a  sum  of  money,  which  he  has  no  right  to  receive,  and 
the  latter,  in  order  to  obtain  possession  of  his  property,  pays  that  sum, 
the  money  so  paid  is  a  payment  by  compulsion,  and  may  be  recovered 
back." 

In  Ashmole  v.  Wainwright,  2  Adol.  and  El.  N.  S.  837,  the  money 
was  paid  for  the  purpose  of  delivering  the  goods  of  the  plaintiff 
from  the  possession  of  the  defendants,  who  detained  them,  as  common 
carriers.  The  action  to  recover  back  the  money  paid  for  their  deliver- 
ance, was  sustained.  Coleridge,  Justice,  saying: — "That  he  never 
doubted  that  an  action  for  money  had  and  received  might  be  main- 
tained on  a  wrongful  detainer  of  goods."         , 

Irving  V.  Wilson,  4  Term.  486,  was  a  case  in  which  the  property 
of  the  plaintiff  was  actually  seized  by  a  revenue  officer,  as  forfeited, 
v/hen  in  fact  it  was  not  liable  to  seizure,  and  money  received  from 
the  owner  to  release  it.  It  was  a  clear  case  of  extortion  and  duress; 
and  the  payment  made  to  obtain  the  goods  could  not  be  considered 
as  voluntary.  Ashhdrst,  Justice,  says: — "It  was  not  a  voluntary 
payment;  for  when  the  defendants  had  stopped  the  goods,  the  plaintiff 
Avas  in  their  power." 

In  Clinton  v.  Strong,  Johnson  E.  369,  the  vessel  of  the  plaintiff  was 
seized  as  having  violated  the  non-intercourse  law,  but  was  subse- 
quently withdrawn,  as  the  vessel  was  found  to  be  innocent.  But  tlie 
marshal  refused  to  re-deliver  the  vessel,  unless  the  costs  were  paid. 
The  costs  were  paid  by  the  plaintiff,  as  the  only  means  of  obtaining 
a  restoration  of  his  property.  The  court  considered  the  property  in 
duress;  and  held  that  the  payment  of  the  costs  was  not  voluntary,  as 
they  were  exacted  by  the  officer  as  a  condition  of  the  re-delivery  of  the 
vessel. 

In  the  case  of  Chase  v.  Dwinal,  7  Greenl.  Rep.  134,  the  money  sought 
to  be  recovered  back  by  the  plaintiff,  had  been  paid  to  liberate  a  raft 
of  lumber,  detained  by  the  defendant,  in  order  to  exact  an  illegal  toll ; 
and  it  was  determined,  that  money  paid  under  such  circumstances, 
was  a  payment  under  duress,  and  necessity,  and  therefore  by  com- 
pulsion. The  court,  alluding  to  the  maxim,  "volenti,  non  fit  injuria" 
say:— 


CHAP,    I.J         MAYOR,  ETC.,  OF  BALTIMORE  V.   LEFFERMAN.  211 

"But  this  rule  applies  where  the  party  has  a  freedom  in  the  exercise 
of  his  will ;  and  is  under  no  such  duress  or  necessity,  as  may  give  his 
payments  the  character  of  having  been  made  upon  compulsion."  And 
again, 

"If  money  is  voluntarily  paid  to  close  a  transaction,  without  duress, 
either  of  the  person  or  goods,  the  legal  maxim,  'volenti  non  fit  injuria' 
may  be  allowed  to  operate.  But  it  would  be  a  perversion  of  the  maxim, 
to  apply  it  for  the  benefit  of  a  party,  who  had  added  extortion,  to 
unjustifiable  force  and  violence." 

In  the  case  of  the  Boston  &  Sandwicli  Glass  Co.  v.  The  City  of 
Boston,  4:  Medcf.  181,  the  tax  was  levied  on  the  personal  property  of 
the  plaintiffs,  by  the  collector,  for  the  collection  of  taxes,  alleged  to 
be  due  from  him.  With  this  levy  placed  upon  their  property,  the 
plaintiffs  paid  the  taxes,  under  a  protest,  that  they  were  illegal,  and 
were  paid  under  duress,  and  not  voluntarily.  The  taxes  were  assessed 
without  authorit}^  and  plaintiffs  recovered  the  amount  in  an  action  of 
assumpsit. 

In  this  case  the  tax  was  actually  levied  on  the  property,  and  if  the 
assessment  had  remained  unpaid,  a  sale  would  have  followed.  The 
court  in  stating  the  ground  on  which  a  payment  of  this  description 
is  regarded  as  compulsory,  refer  to  Preston  v.  City  of  Boston,  13  Pick. 
7,  and  say : — 

"It  arises  from  the  power  and  authority  placed  in  the  hands  of  a 
collector  of  taxes,  to  levy  directly  upon  the  property  or  person  of  every 
individual,  whose  name  is  borne  on  the  tax  lists,  in  default  of  pay- 
ment of  the  taxes.  To  use  the  language  of  the  court,  in  the  case  just 
referred  to,  such  warrant  is  in  the  nature  of  an  execution  gunning 
against  the  property  and  person  of  the  party,  upon  which  he  has  no  day 
in  court,  no  opportunity  to  plead  and  offer  proof,  and  have  a  judicial 
decision  of  the  question  of  his  liability." 

The  court  refer  to  the  cases  of  Shaw  v.  Woodcock,  7  Bar.  and  Cres. 
73;  Astley  v.  Reynolds,  2  Strange,  916  ;  and  Chase  v.  Dwinal,  7  Greenl. 
E.  134,  and  it  is  evident  from  the  whole  tenor  of  the  opinion,  that  they 
considered  a  payment  compulsory,  only  when  it  was  made  for  the  pur- 
pose of  liberating  the  person  or  property,  from  the  duress  of  a  party 
who  has  control  of  it. 

We  consider,  therefore,  the  doctrine  as  established,  that  a  payment 
is  not  to  be  regarded  as  compulsory,  unless  made  to  emancipate  the 
person  or  property,  from  an  actual  and  existing  duress,  imposed  upon 
it  by  the  party,  to  whom  the  money  is  paid.  And  that  a  payment 
made  under  the  apprehension,  or  even  menace  of  an  impending  dis- 
tress warrant,  would  not  render  it  a  payment  by  compulsion.  Knobbs 
r.  Hall,  1  Esp.  Eep.  84.     Colwell  v.  Peden,  3  Watts,  328. 

Testing  the  case  before  us  by  this  principle,  it  is  manifest,  that  the 
expenditure  made  by  the  plaintiff  has  none  of  the  characteristics 
<^f  a  payment  by  compulsion:  It  is  the  clear  case  of  an  act  performed 


212  MAYOR,  ETC.,   OF  BALTIMORE   V.   LEFFEEMAN.         [BOOK   II. 

by  the  plaintiff,  in  obedience  to  the  demand  of  the  defendants,  con- 
scientiously and  honestly  preferred;  which  the  plaintiff  regarded  at 
the  time  as  lawful  and  just,  but  in  which,  it  appears  from  subsequent 
events,  that  he  was  mistaken.  It  is  the  plain  case,  of  an  expenditure 
voluntarily  and  freely  made  by  the  appellee,  in  the  belief  that  he  was 
performing  his  duty,  but  under  a  misapprehension  of  his  legal  re- 
sponsibility. 

It  cannot  be  pretended,  that  any  duress  or  force  was  applied  to  the 
property  or  person  of  the  plaintiff,  as  a  means  of  coercing  the  execu- 
tion of  this  work,  or  that  the  money  was  expended  to  extricate  his 
estate  from  the  pressure  of  some  process  that  could  not  be  resisted. 

The  appellee  was  warned  by  the  notice  of  the  19th  of  June  1839, 
that  if  the  wall  was  not  commenced  within  three  months,  the  city 
commissioners  would  have  it  done,  and  charged  to  his  account,  as 
directed  by  one  of  the  ordinances.  That  is,  that  the  appellants  would 
direct  the  wall  to  be  constructed  by  others,  and  collect  such  expenses 
as  might  be  incurred,  by  suit,  or  distress,  in  the  manner  in  which 
paving  taxes  are  collected.  But  this  is  no  duress  or  coercion ;  and  all 
that  can  be  urged  in  vindication  of  the  position  assumed  by  the 
appellee  is,  that  the  expenditure  was  made  by  him,  under  the  appre- 
hension, that  if  the  wall  was  not  erected,  the  improvement  would  be 
executed  by  the  appellants,  and  the  cost  charged  to  his  account,  and 
recovered  by  suit,  or  warrant.  A  payment  made  under  said  circum- 
stances, is  in  law,  not  regarded,  as  compulsory  in  its  character.  If  a 
distress  warrant  had  been  laid  by  the  collector  of  the  appellants,  on 
the  property  of  the  appellee,  and  he  had  made  the  expenditure  for  the 
purpose  of  liberating  his  property  from  the  predicament  in  which  it 
was  thus  placed,  the  aspect  of  the  question  would  have  l)een  changed, 
and  such  a  payment  might  be  treated,  as  by  compulsion.  But  there 
is  no  such  feature  in  this  case,  and  the  court  erred,  we  think,  in  grant- 
ing the  plaintiff's  second  prayer. 

It  follows  from  the  views  thus  expressed,  that  this  court  is  divided  in 
opinion,  on  the  question  raised  by  the  defendant's  first  prayer :  and 
that  we  think,  the  court  below  erred  in  rejecting  their  second  prayer. 

The  judgment  of  the  county  court  is  therefore  reversed  without  a 
pj'ocedendo. 

JUDGMENT    REVERSED.^ 

^Followed  in  Morris  v.  Mayor  (1847)  5  Gill,  244.  For  other  elaborate 
discussions  of  the  questions  involved  in  the  principal  ease,  see  Mays  v.  Cin- 
cinnati (185.3)  1  Ohio  St.  208,  274;  Marietta  v.  Slocumb  (1856)  6  Ohio  St. 
471;  Brumanrim  v.  Tillinghast  (18(51)  18  Cal.  265;  Stephan  v.  Daniels  (1875) 
27  Ohio  St.  527;  Elston  v.  Chicapo  (ISOO)  40  111.  514;  Baker  r.  City  of  Cin- 
cinnati  (1800)   11  Ohio  St.  5.34. 

"There  is  no  doubt  of  the  proposition  laid  down  by  Mr.  Erie,  that  if 
goods  are  wrongfully  taken,  and  a  sum  of  money  is  paid,  simply  for  the 
purpose  of  obtaining  possession  of  these  goods  again,  without  any  agreement 


CHAP.    I.]  BEXSOX    V.    MONROE.  213 

Benson  v.  Monroe  (1851)  7  Cush.  125,  126.  Metcalf,  J.,  delivered 
the  opinion  of  the  court.  It  is  an  cstablislied  rule  of  law,  that  if  a 
party,  with  full  knowledge  of  the  facts,  voluntarily  pays  a  demand 
unjustly  made  on  him,  and  attempted  to  be  enforced  by  legal  pro- 
ceedings, he  cannot  recover  back  the  money,  as  paid  by  compulsion, 

at  all,  especially  if  it  be  paid  under  protest,  that  money  can  be  recovered 
back;  not  on  the  ground  of  duress,  because  I  think  that  the  law  is  clear, 
although  there  is  some  case  in  Viner's  Abridgement  to  the  contrary  (Vin. 
Abr.  Duress,  B.  3;  1  Roll.  Abr.  687),  that,  in  order  to  avoid  a  contract  by 
reason  of  duress,  it  must  be  duress  of  a  man's  person,  not  of  his  goods;  and 
that  it  is  so  laid  down  in  Shoppard's  Touchstone  (p.  61)  :  But  the  ground  is 
that  it  is  not  a  voluntary  paj-mcnt.  If  my  goods  have  been  wrongfully  detained 
and  I  pay  money  sinij)]y  to  obtain  them  again,  that  being  paid  under  a  species 
of  duress  or  constraint,  may  be  recovered  back;  but  if,  while  my  goods  are 
in  possession  of  another  person,  I  make  a  binding  agreement  to  pay  a  certain 
sum  of  money,  and  to  receive  them  back,  that  cannot  be  avoided  on  the  ground 
of  duress."— Per  Parke,  B.,  in  Atlee  v.  Backhouse  (1838)  3  M.  &  W.  633,  G50. 
Ace.  Skeate  v.  Beale  (1841)  11  Ad.  &  E.  983.  As  to  distinction  between 
duress  of  real  and  personal  property,  see  Fleetwood  v.  New  York  (1849) 
2  Sandf.  475. 

Money  paid  to  secure  a  license  under  an  ordinance  afterwards  declared 
unconstitutional,  payment  being  made  under  a  mere  apprehension  of  legal 
proceedings,  cannot  be  recovered  back.  Town  of  Ligonier  v.  Ackerman  (1874) 
46  Ind.  552;  Town  Council  of  Cahaba  v.  Burnett  (1859)  34  Ala.  400;  Cook  v. 
Boston  (1864)  9  Allen,  393;  nor  can  it  if  the  license  is  issued  at  tlfe  request 
of  the  plaintiff,  without  objection  or  protest.  Mays  v.  Cincinnati  (1853) 
1  Ohio  St.  268.  But  where  county  commissioners  granted  a  license  to  one 
making  the  largest  donation  to  the  county,  such  act  being  in  excess  of  tlieir 
powers,  it  was  held  such  money  might  be  recovered  with  interest.  County 
of  La  Salle  v.  Simmons  (1849)  10  111.  (5  Gilm.)  513.  And  money  paid  under 
an  unconstitutional  ordinance,  by  reason  of  "threats  of  prosecution,  or  under 
a  belief,  induced  by  the  officers  of  the  town,  that  only  by  payment  could  they 
escape  prosecution,  and  was  paid  by  them  under  protest,  then  such  payment 
can  in  no  just  sense  be  called  voluntary,  and  so  is  recoverable."  Harvey  v. 
Town  of  Olncy  (1866)  42  111.  336.  See  Smith  v.  Hutchinson  (1855)  8  Rich. 
260. 

Questions  as  to  voluntary  payments  arise  most  frequently  in  connection 
with  cases  brought  to  recover  money  paid  for  illegal  taxes.  If  an  illegal  tax 
is  voluntarily  paid,  it  cannot  be  recovered.  Smith  v.  Schroeder  (1870) 
15  Minn.  IS;  Jenks  v.  Lima  Township  (1861)  17  Ind.  328;  though  if  the 
assessment  is  valid  on  its  face,  b\it  really  void,  a  recoverey  may  be  had. 
Brueeher  r.  Port  Chester  (1886)  101  N.  Y.  240.  But  see  Jenks  v.  Lima  Town- 
ship, supni ;  Fleetwood  v.  New  York  (1849)  2  Sandf.  475.  It  is  said  that 
payment  can  be  considered  voluntary  only  "when  it  is  made  to  produce  the 
release  of  the  person  or  property  of  the  party  from  detention,  or  when  the 
other  party  is  armed  with  apparent  authority  to  seize  upon  either,  and 
the  payment  is  made  to  prevent  it."  IMays  r.  Cincinnati  (1853)  1  Ohio  St. 
268,  278;  Jenks  v.  Lima  Township  (ISdl  )  17  Ind.  328,  in  which  case  it  would 
seem  unnecessary  to  protest.     Lincoln   r.   City  of  Worcester    (1851)    8  Cush. 


214  BENSON    V.    MONROE.  [BOOK    11. 

unless  there  be  a  fraud  in  the  party  enforcing  the  claim,  and  a  knowl- 
edge that  the  claim  is  unjust.  And  the  case  is  not  altered  by  tlie  fact 
that  the  party,  so  paying,  protests  that  he  is  not  answerable,  and  gives 
notice  that  he  shall  bring  an  action  to  recover  the  money  back.  He 
has  an  opportunity,  in  the  first  instance,  to  contest  the  claim  at  law. 

55,  61.  But  the  mere  possession  by  the  collectors  of  warrants  of  attachment 
is  not  sufficient.  Smith  v.  Readfield  (1847)  27  Me.  145;  but  see  Joyner  v. 
Third  School  District  (1849)  3  Cush.  567.  Payments,  under  threats,  express 
or  implied,  that  legal  remedies  for  the  tax  will  be  resorted  to,  is  voluntary. 
Taylor  v.  Board  of  Health  (1855)  31  Pa.  St.  73;  even  though  a  protest  is 
made  at  the  time  of  payment,  Lester  v.  Baltimore  (1868)  29  Md.  415,  unless 
if  the  threatened  sale  were  made  it  would  be  a  cloud  on  the  title.  City  of 
Detroit  v.  Martin  (1876)  34  Mich.  170  (but  where  the  illegality  appears  on 
the  face  of  the  proceedings,  no  cloud  is  cast.  Curtis  v.  East  Saginaw  (1877) 
35  Mich.  508);  Swanston  v.  Ijams  (1872)  63  111.  165.  But  it  is  held  in 
New  York  that  a  sale  under  a  void  assessment  casts  no  cloud  on  the 
title,  distinguishing  duress  as  to  personality  and  reality.  Fleetw^ood  v. 
New  York  (1849)  2  Sandf.  475,  and  see  Tripler  v.  Mayor  (1891)  125  N.  Y. 
617.  So  a  payment  was  held  voluntary  that  was  made  to  redeem  tax  sale 
certificates,  issued  against  property  in  a  sale  for  an  illegal  tax,  the  owner  at 
the  time  of  payment  expressly  denying  the  validity  of  the  tax,  and  paying 
to  prevent  the  issuance  of  tax  deeds.  Phillips  v.  Jefferson  Co.  (1870)  5  Kan. 
412;  Powell  v.  Board  (1879)  46  Wis.  210;  but  see  Vaughn  v.  Village  of 
Port  Chester  (1892)  135  N.  Y.  460.  Where  goods  were  distrained  for  a  tax 
partly  legal  and  partly  illegal,  the  whole  sum  realized  from  the  sale  was 
recovered.  Drew  v.  Davis  (1838)  10  Vt.  506,  but  see  Hemmingway  v.  Machias 
( 1851 )  33  Me.  445 ;  and  so,  of  course,  a  recovery  was  permitted  when  the 
tax  was  wholly  void.  Sumner  v.  First  Parish  (1826)  4  Pick.  361.  Where  no 
goods  were  distrained,  but  a  tax  partly  legal,  partly  illegal  was  paid,  a  recovery 
was  not  permitted,  no  protest  having  been  made.  Borough  of  Allentown "  v. 
Saeger  (1853)  20  Pa.  St.  421.  The  courts  are  at  variance  upon  the  general 
doctrine,  but  they  seem  uniformly  unwilling  to  permit  a  recovery  of  money 
paid  on  illegally  assessed  real  property  taxes,  owing  probably  to  the  attempted 
distinction  between  real  and  personal  property,  Fleetwood  v.  New  York,  supra, 
which  distinction  is  based  on  the  idea  that  as  real  property  is  non-attachable 
and  cannot  be  passed  from  hand  to  hand,  an  owner  is  able  at  all  times  to 
test  the  validity  of  a  tax.  However,  a  very  respectable  authority  has  said 
that  on  principle  and  authority  there  is  and  can  be  no  distinction  between 
real  and  personal  property.  Joannin  v.  Oglivie  (1892)  49  Minn.  564,  and 
authorities  cited.     (See  ante,  p.  184,  where  the  case  is  printed.) 

An  executor  paying  out  funds  by  a  decree  of  a  court,  pays  under  com- 
pulsion, and  is  not  liable  for  such  payment,  though  the  decree  is  subsequently 
reversed.  Farrell  v.  Smith  (1813)  2  Ba.  &  Be.  337;  Bennett  v.  Hamill  (1806) 
2  Sch.  &  Lef.  506,  578. 

In  an  appeal  from  the  Court  of  Claims,  it  was  held  that  if  a  collector 
of  customs,  pursuant  to  a  peremptojy  order  of  the  Commissioner  of  Customs, 
pays  into  the  treasury  money  to  which  he  is  lawfully  entitled  as  part  of  the 
fees  and  emoluments  of  his  office,  he  may  recover  the  same.  U.  S.  v.  Ells- 
worth (1879)  101  U.  S.  171 ;  citing  and  approving  U.  S.  v.  Lawson,  id.  104.— Ed. 


CHAP.    I.]  ATWELL  V.   ZELUFF.  215 

He  has  or  may  liave  a  day  in  court;  he  may  plead  and  make  proof 
that  the  claim  on  him  is  such  as  he  is  not  bound  to  pay.  ...  As 
was  said  by  Gibbs,  J.,  in  Brisbane  v.  Dacres,  5  Taunt.  152,  the  party 
has  an  option,  whether  to  litigate  the  question,  or  submit  to  the  de- 
mand and  pay  the  money.  See  also  Preston  v.  City  of  Boston,  12  Pick. 
13,  14;  Rawson  v.  Porter,  9  Greenl.  119.^ 


ATWELL  V.  ZELUFF. 

S.UPREME  Court  of  Michigan,  1873. 

[26  Michigan,  118.] 

Campbell,  J.  Atwell  sued  Zeluff,  who  was  supervisor  of  the  town 
of  Ridgeway,  Lenawee  county,  in  an  action  of  trespass,  the  cause  of 
action  being  the  issue  by  Zeluff  of  tax  rolls  for  the  collection  of  ditch 
taxes  against  Atwell,  one  of  which  he  paid  on  demand  of  the  collector, 
and  the  other  was  enforced  by  selling  his  personal  property.  The 
warrant  issued  to  the  collector,  was  the  one  required  by  law  for  the 
regular  annual  taxes,  to  be  enforced,  in  case  of  non-payment,  by  sale 
of  chattels.     The  ditch  tax  was  extended  on  the  general  tax  roll. 

In  regard  to  the  payment  made  without  levy  on  his  goods,  it  was 
objected  that  the  payment  being  without  protest,  was  voluntary.^  The 
question  was  somewhat  ■  discussed,  but  not  actually  decided,  in  the 
case  of  the  First  National  Bank  of  Sturgis  t'.Watkins,  21  Mich.  R.  483. 
Where  an  officer  demands  a  sum  of  money  imder  a  warrant  directing 
him  to  enforce  it,  the  party  of  whom  he  demands  it,  may  fairly  assume 
that  if  he  seeks  to  act  under  the  process  at  all,  he  will  make  it 
effectual.     The  demand  itself  is  equivalent  to  a  service  of  the  writ 

'"So  if  a  party  can  have  his  day  in  court  before  payment,  and  does  not  avail 
himself  of  it,  he  cannot  be  allowed,  after  permitting  that  opportunity  to 
pass  by,  to  maintain  an  action  to  recover  back. 

'In  such  cases,  the  maxim  'Interest  rei  puhlicce  ut  sit  finis  litiiim'  governs. 
Mariott  v.  Hampton,  7  Term  Rep.  269;  Brown  v.  McKinnally,  1  Esp.  270; 
Hamlet  v.  Richardson,  9  Bing.  (544 :  Dew  v.  Parsons,  2  B.  &  Al.  562,  2  Smith's 
Lead.  Cas.  marginal,  p.  402;  Covington  Bridge  Co.  v.  Sargent.  27  Ohio  St.  2.3.3." 
— Stephan  v.  Daniels  (1875)  27  Ohio  St.  527,  539.  Ace.  Marietta  v.  Slocumb 
(1856)    6  Ohio  St.  471. 

"To  make  it  a  case  of  payment  under  compulsion  [as  to  realty],  there 
must  be  an  illegal  demand,  coupled  with  a  present  power  or  authority  in 
the  person  making  such  demand,  to  sell  or  dispose  of  the  property,  if  pay- 
ment is  not  made  as  demanded." — Mariposa  Co.  v.  Bowman  ( 1867)  Deady.  228, 
231;  Smith  v.  Readfield  (1847)  27  Me.  145,  147;  Boston,  &c.  v.  Boston  (1842) 
4  Met.  181;  Mays  v.  Cincinnati    (1853)    1  Ohio  St.  268.  278.— Ed 

"Only  so  much  of  the  opinion  as  bears  upon  this  point  is  given. — Ed. 


216  AT  WELL  V.   ZELUFF.  [BOOK,  II. 

on  the  person.  Any  payment  is  to  be  regarded  as  involuntary  which, 
is  made  under  a  chiim  involving  the  use  of  force  as  an  alternative, 
as  the  party  of  whom  it  is  demanded  cannot  be  compelled  or  expected 
to  await  actual  force,  and  cannot  be  held  to  expect  that  an  officer 
will  desist  after  once  making  demand.  The  exhibition  of  a  warrant 
directing  forcible  proceedings,  and  the  receipt  of  money  thereon,  will 
be  in  such  case  equivalent  to  actual  compulsion. 

There  has  been  some  confusion  among  the  authorities  as  to  the 
necessity  or  effect  of  a  protest  in  such  cases,  but  the  question  has  not 
often  arisen  upon  the  service  of  legal  process.  In  some  cases  it  has 
been  intimated  that  it  might  be  necessary,  in  order  to  recover  back  a 
payment  from  the  person  to  whom  it  was  actually  paid,  after  he  had 
paid  over  the  money  under  his  agency.  But  where  the  person  de- 
manding and  receiving  the  money,  does  so  under  color  of  process,  as 
a  legal  officer,  we  think  the  payment  must  be  deemed  involuntary, 
because  the  party  paying  has  no  legal  means,  by  appeal  or  otherwise, 
of  preventing  the  seizure  of  his  property.  If  he  has  such  means  of 
redress,  which  would  be  effectual  to  stay  the  process,  there  is  reason 
for  making  a  distinction  which  may,  perhaps,  be  sustained.  The 
supreme  court  of  Massachusetts,  in  Boston  &  Sandwich  Glass  Co.  v. 
City  of  Boston,  4  Met.  181,  citing  a  former  case  in  17  Mass.  461, 
refer  to  the  absolute  character  of  the  warrant  as  excusing  the  necessity 
of  a  protest.  But  we  think  the  rule  of  damages  there  adopted  as  to  the 
difference  of  liability  where  there  is  and  where  there  is  not  a  protest, 
is  also  based  on  good  sense.  Where  the  money  is  not  paid  under 
protest,  it  is  there  held  that  no  interest  should  be  allowed  until  demand 
or  action  brought,  so  as  to  put  the  party  sued  in  actual  fault  for  not 
making  satisfaction  as  soon  as  the  wrong  is  pressed  upon  his  notice. 
A  payment  without  protest  may  prevent  him  from  making  in(|uiry 
and  examining  into  the  law,  and  while  legal  ignorance  will  not 
excuse  an  illegal  demand,  it  may  very  properly  qualify  the  extent  of 
damages  for  a  merely  technical  wrong. 

As  this  defect  is  fatal,^  and  there  can  be  no  jurisdiction  under 
the  roll,  no  other  questions  need  be  discussed.  There  was  no  demand 
here  before  suit  brought,  and  the  sale  is  not  shown  to  have  been  any 
fixed  time  before.  Judgment  must  be  reversed,  and  a  new  judg- 
ment must  be  entered  for  plaintiff,  on  the  finding,  for  the  amount  of 
the  illegal  exactions,  with  interest  from  suit  brought,  and  with  costs 
of  a]l  the  courts. 

There  are  such  practical  hardships  in  perniitting  persons  to  be  held 
liable  to  action,  where  no  distinct  protest  is  made,  pointing  out  reasons 
why  a  collector  should  withliold  action  under  his  warrant,  that  it  is 
a  proper  subject  for  legislative  consideration,  whether  some  provision 

*The  tax  rolls  were  declared  void  for  uncertainty,  and  so  the  tax  levied 
according  to  them  was  void. — Ed. 


CHAP.   I.]  FELLOWS  V.  SCHOOL  DISTRICT.  217 

should  not  be  made  to  regulate  the  matter.  The  officers  can  seldom 
be  expected  to  understand  the  niceties  of  the  law,  and  it  is  not 
desirable  that  persons  should  be  deterred  from  holding  the  necessary 
local  offices,  by  fear  of  consequences  for  which  they  are  not  morally 
responsible. 

The  other  justices  concurred.^ 


FELLOWS  V.  SCHOOL  DISTRICT. 

Supreme  Judicial  Court  of  Maine,  1855. 

[39  Maine,  559.] 

On  report  from  Nisi  Prius,  Siiepley,  C.  J.,  presiding.- 

Assumpsit,  to  recover  back  the  sum  paid  on  a  school  district  tax 
in  1852,  for  building  a  school-house. 

Rice,  J.  The  defendant  claims  to  recover  the  amount  of  a  tax 
paid  to  the  collector  of  the  town  of  Fayette,  for  the  benefit  of  the 
defendants,  which  he  alleges  was  illegally  assessed  iipon  him,  and 
which  he  was  compelled  to  pay  by  duress,  and  which  was  paid  under 
protest. 

By  duress,  in  its  more  extended  sense,  is  meant  that  degree  of 
severity,  either  threatened  or  impending,  or  actually  inflicted,  which 

'"We  deem  it  a  well-settled  rule  of  law  that  where  a  party,  with  full  knowl- 
edge of  the  facts,  pays  a  demand  that  is  unjustly  made  against  him,  and  to 
which  he  has  a  valid  defence,  and  where  no  special  damage  or  irreparable  loss 
would  be  incurred  by  making  such  defence,  and  where  there  is  no  claim  of 
fraud  upon  the  part  of  the  party  making  such  claim,  and  the  payment  is 
not  necessary  to  obtain  the  possession  of  the  property  wrongfully  withheld, 
or  the  release  of  his  person,  such  payment  is  voluntary,  and  cannot  be 
recovered.  Xor  will  tlie  fact  that  such  payment  was  accomjianied  by 
a  protest  make  that  involuntary  which  otherwise  would  be  voluntary. 
A  protest  is  of  no  avail  unless  there  be  duress  or  coercion  of  some 
character,  and  then  its  only  office  is  to  show  that  the  payment  is  the  conse- 
quence of  such  duress  or  coercion.  Benson  v.  Monroe,  7  Cush.  125;  Commis- 
sioners V.  Walker,  8  Kan.  431;  Emmons  v.  Scudder,  115  Mass.  367;  Lester  r. 
Mayor,  etc.  29  Md.  415;  Potomac  Coal  Co.  v.  Cumberland  &  P.  R.  Co.  38  Md. 
226;  Gerecke  v.  Campbell,  24  Neb.  300,  38  N.  W.  Rep.  847:  Mariposa  Co.  r. 
Bowman,  Deady,  228;  Lamborn  v.  Commissioners,  97  U.  S.  181;  Powell  r. 
Board,  46  Wis.  210,  50  N.  W.  Rep.  1013."— Wessel  v.  Land  &  :Mortgage  Co. 
(1893)  3  X.  Dak.  100;  Boston  &  Sandwich  Glass  Co.  r.  City  of  Boston  (1842) 
4  Met.  181.  It  is  immaterial  that  the  protest  is  formal  and  written.  Rail- 
road Co.  V.  Commissioners  (1878)  98  U.  S.  541.  And,  of  course,  protest  after 
payment  is  unavailing.    Mariott  v.  Brune  (1850)  9  How.   (U.S.)   019. — Ed. 

-The  opinion  only  is  printed. — Ed. 


218  FELLOWS   V.   SCHOOL  DISTRICT.  [BOOK   II, 

is  sufficient  to  overcome  the  mind  and  will  of  a  person  of  ordinary 
firmness.  The  common  law  has  divided  it  into  two  classes,  namely, 
duress  per  minas,  and  duress  of  imprisonment.  Duress  per  minas 
is  restricted  to  the  fear  of  loss  of  life,  or  of  mayhem,  or  loss  of  limb ; 
or  in  other  words  of  remediless  harm  to  the  person.  2  Greenl.  Ev. 
§  301. 

The  plea  of  duress  of  imprisonment  is  supported  by  any  evidence 
that  the  party  was  unlawfully  restrained  of  his  liberty  until  he 
would  execute  the  instrument.  Ibid,  §  303.  To  constitute  duress 
of  imprisonment,  the  imprisonment  must  be  unlawful.     1  Salk.  68. 

One  peremptorily  called  upon  to  pay  an  illegal  tax,  by  virtue  of 
a  warrant  issued  to  a  collector  of  taxes,  may  give  notice  that  he  pays 
it  by  duress,  and  not  voluntarily,  and  it  would  seem,  under  such 
circumstances,  may  recover  it  back  again.  Preston  v.  Boston,  12 
Pick.  7. 

But  where  money  is  claimed  as  rightfully  due,  and  is  paid  volun- 
tarily, and  with  a  full  knowledge  of  all  the  facts  in  the  case,  it  cannot 
be  recovered  back  if  the  party  to  whom  it  has  been  paid  may  con- 
scientiously retain  it.  Brisbane  v.  Dacres,  5  Taunt.  144;  Smith  v. 
Keadfield,  27  Maine,  145.  Nor  can  money  paid  under  a  mistake  of 
law  be  reclaimed.    Norton  v.  Harden,  15  Maine,  45. 

A  tax  has  been  assessed  against  the  plaintiff  by  the  assessors  of 
Fayette,  for  the  benefit  of  the  inhabitants  of  School  District  No.  8. 
in  that  town.  Tax  bills  in  which  this  tax  was  included,  accompanied 
by  a  warrant  for  their  collection,  had  been  committed  to  the  collector 
of  taxes  for  Fayette.  The  plaintiff  had  been  called  upon  by  the  col- 
lector, and  payment  of  the  tax  against  him  demanded;  he  protested 
against  paying;  was  arrested  by  the  collector  and  carried  to  Augusta, 
when  he  agreed  that  he  would  pay  the  tax,  and  was  thereupon  dis- 
charged from  his  arrest  by  the  collector.  About  a  week  after  this 
transaction,  without  any  further  interposition,  or  claim  on  the  part 
of  the  collector,  so  far  as  the  case  finds,  the  plaintiff  paid  the  tax, 
and  costs  of  arrest  and  conveyance  to  Augusta  and  back.  Was  that  a 
voluntary  payment,  with  a  knowledge  of  all  the  facts,  or  was  it  a 
payment  under  protest,  and  by  duress? 

At  common  law,  as  it  was  understood  before  and  during  the  reign 
of  Elizabeth,  a  voluntary  escape  of  a  prisoner,  in  execution,  completely 
and  forever  discharged  him  from  the  debt,  so  that  neither  the  plaintiff 
nor  sheriff  could  retake  him  for  the  same  demand.  Bro.  Tit.  Escape, 
PI.  12  and  45;  Linacre  v.  Ehodes'  case,  Leon.  R.  90;  Lansing  v.  Fleet, 
2  Johnson's  Cases,  3. 

Since  that  time  this  law  has  been  modified,  or  differently  under- 
stood, and  a  voluntary  escape  of  a  debtor  in  execution,  will  not  deprive 
the  creditor  of  the  right  of  procuring  the  rearrest  of  the  debtor  on  a 
new  process,  or  if  he  voluntarily  return,  of  considering  him  in  custody 
under  the  old;  but  so  far  as  the  sheriff  is  concerned,  he  cannot  rearrest 


CHAP.    I.]  FELLOWS   V.   SCHOOL   DISTRICT.  219 

the  debtor  on  the  old  process.  By  the  first  arrest  the  writ  has  been 
obeyed,  and  has  performed  its  proper  function ;  and  after  a  voluntary 
discharge  the  sheriff  cannot  arrest  a  second  time  on  the  same  precept. 
If  he  does  so,  he  is  liable  to  an  action  for  false  imprisonment.  Atkin- 
son V.  Jameson,  5  D.  &  E.  25 ;  Sheriff  of  Essex's  case,  Hob.  203 ;  Vin. 
Ab.  Escape,  p.  17;  Thompson  v.  Lockwood,  15  John.  256;  Lansing  v. 
Fleet,  3  Johns.  Cases,  3;  Com.  v.  Drew,  4  Mass.  391;  Brown  v.  Get- 
chell,  11  Mass.  11. 

That  the  collector,  after  the  arrest,  permitted  the  plaintiff  volun- 
tarily to  escape,  is  too  plain  to  require  argument.  After  that  escape 
the  power  of  the  collector,  under  his  warrant,  to  rearrest  the  plaintiff 
was  extinguished.  Nor  indeed  is  there  any  evidence  that  he  again 
sought  to  enforce  his  warrant  by  another  arrest,  or  even  threatened 
to  do  so.  If  it  be  said  that  the  tax  was  paid  under  the  agreement  to 
pay.  by  means  of  which  the  plaintiff  procured  his  discharge  from  arrest, 
and  that  that  agreement  was  extorted  by  duress,  the  answer  is,  if,  as 
the  plaintiff'  contends,  the  arrest  was  illegal,  then  the  agreement 
was  without  legal  consideration,  and  void.  If  it  be  further  said  that 
the  plaintiff'  supposed  or  apprehended  that  he  should  be  again  arrested 
if  he  did  not  pay,  and  made  the  payment  under  the  misapprehension 
of  his  legal  rights,  the  answer  is,  that  such  a  misapprehension  would 
be  a  mistake  of  law,  and  not  of  fact. 

Upon  the  whole,  the  payment  of  which  the  plaintiff  now  complains, 
must  be  deemed  to  have  been  made  voluntarily,  and  with  a  knowledge 
of  all  the  facts.  The  action  seems  to  be  grounded  wholly  on  supposed 
technical  defects  in  the  proceedings  on  the  part  of  the  town  and  the 
school  district.  The  money  has  been  appropriated  for  a  highly  meri- 
torious object,  and  there  is  no  suggestion  of  oppression,  improvidence 
or  waste,  on  the  part  of  the  authorities  of  the  town  or  district.  In 
such  a  case  we  think  the  money  may  well  be  consistently  retained, 
even  though  there  may  have  been  technical  informalities  in  assessing 
the  tax.  In  the  view  however,  which  we  have  taken  of  the  case,  it 
does  not  become  necessary  to  examine  the  proceedings  of  the  town 
or  district ;  we  therefore  express  no  opinion  upon  that  part  of  the  case 
which  refers  to  the  legality  of  the  tax. 

Plaintiff  nonsuit.^ 

^Accord:  Schultz  v.  Culbertson  (1879)  46  Wis.  313.— Ed. 


220  WELLS  V.  PORTER  &  CRONKHITE.  [BOOK.    II. 

WELLS  V.  PORTER  &  CRONKHITE. 

Supreme  Court  of  New  York,  1831. 

[7  Wendell  119.] 

This  was  an  action  of  assumpsit,  tried  at  the  Warren  circuit  in 
June,  1829,  before  the  Hon.  Esek  Cowen,  one  of  the  circuit  judges. 
The  declaration  contained  the  money  counts  only.  The  action  was 
to  recover  back  $100  paid  by  the  plaintiff,  to  redeem  a  number  of 
hogs  belonging  to  him,  kept  by  Cronkhite,  one  of  the  defendants, 
at  a  distillery,  for  the  purpose  of  being  fatted.  The  hogs  were  taken 
and  sold  as  a  distress  for  the  rent  of  the  premises  occupied  by  the 
defendants,  and  bought  in  by  the  plaintiff.  The  defendants  became 
the  assignees  of  the  demised  premises,  on  the  19th  July,  1824,  but 
did  not  enter  into  the  actual  possession  thereof  until  May,  1825. 
The  annual  rent  reserved  on  the  lease  was  $40  per  annum.  In  June, 
1825,  the  property  of  the  plaintiff  was  taken  on  a  distress  warrant, 
issued  by  a  general  agent  of  the  landlord  to  a  bailiff  to  collect  $200, 
arrears  of  rent  due  on  the  1st  February,  1825.  The  agent  had  no 
written  power  of  attorney  or  appointment,  and  no  express  authority 
to  appoint  a  sub-agent  or  bailiff;  the  avails  of  the  sale  were  paid  to, 
and  received  by  the  landlord.  It  appeared  that  part  of  the  consider- 
ation of  the  assignment  of  the  demised  premises  to  the  defendants 
was  the  payment  of  a  debt,  owing  by  a  former  assignee  to  a  third 
^/  person,  who  held  the  lease  by  way  of  security.  '  The  defendants 
insisted  that  the  money  paid  by  the  plaintiff  was  not  paid  for  the 
benefit  of  the  defendants,  they  not  being  personally  responsible  for  the 

^  \j  rent  accrued  previous  to  their  entry  into  possessiouy'that  the  payment 
was  made  without  their  consent  or  request,  and  that  the  plaintiff, 
if  entitled  to  recover  at  all,  should  have  brought  a  special  action  on 
the  case.  A  verdict  was  rendered  for  the  plaintiff  subject  to  the 
opinion  of  this  court. 

/^^v/  By  the  Court,  Savage,  Ch.  J.  '1  see  no  objection  to  the  plaintiff's 
recovery.  It  is  true,  the  assignees  were  not  personally  bound  to  pay 
any  rent  before  the  assignment,  but  their  property  was  bound;  the 
rent  was  a  lien,  an  incumbrance  upon  the  property,  and  constituted 
a  part  of  the  consideration  of  their  purchase  from  a  previous  assignee. 
^^  >^The  money  was  therefore  paid  for  the  use  of  the  defendantsy'  They 
were  tenants  in  common  of  the  property,  chargeable  with  the  pay- 
ment of  the  rent,  if  they  were  not  partners.  It  does  not  appear  that 
Porter  was  concerned  in  the  distillery,  nor  that  he  was  interested  in 
the  contract  to  keep  the  plaintiff's  hogs;  but  the  joint  liability  rests 
on  the  fact,  that  the  property  in  which  they  were  equally  interested, 
and  it  appears  to  me  jointly  interested,  was  liable  for  the  rent,  which 


CHAP,    I.]  ELLIOTT    V.    SWARTWOUT.  221 

is  sufficient  to  render  them  jointly  liable  in  this  action.  Their 
property  was  not  severed;  there  was  no  opportionment  of  the  rent; 
their  joint  property  was  liable  for  it,  and  was  benefited  by  the  pay- 
ment. 

There  was  no  irregularity  in  the  distress.  The  person  issuing 
the  warrant  was  the  general  agent  of  the  landlord,  and. had  power, 
in  the  name  of  his  principal,  to  appoint  a  bailiff.  If  there  were  any 
doubt  on  that  point,  the  authority  of  both  the  agent  and  bailiff  was 
confirmed  by  the  acts  of  the  landlord. 

The  plaintiff  is  entitled  to  judgment.^ 


ELLIOTT  V.  SWAETWOUT. 

Supreme  Court  of  the  United  States^  1836. 

[10  Peters,  137.] 

On  a  certificate  of  division  from  the  Circuit  Court  of  the  United 
States  for  the  southern  district  of  New  York. 

The  suit  was  originally  instituted  in  the  Superior  Court  of  the  city 
of  Xew  York,  by  the  plaintiff  against  the  defendant,  the  collector  of 
the  port  of  New  York ;  and  was  removed  by  certiorari  into  the  Circuit 
Court  of  the  United  States. 

^"It  appears  upon  this  report  that  the  plaintiff  in  order  to  save  his  property 
from  being  sold  on  legal  process,  has  been  compelled  to  pay  a  debt  which 
was  really  due  from  the  defendant.  Under  such  circumstances,  the  law  implies 
a  request  on  the  defendant's  part,  and  a  promise  to  repay;  and  the  plaintiff 
has  the  same  right  of  action  as  if  he  had  paid  the  money  at  the  defendant's 
express  request.  Exall  v.  Partridge,  8  T.  R.  308,  1  Smith  Lead.  Cas.  (5th  Am. 
ed.)  70a,  73;  Hale  v.  Huse,  10  Gray,  99."— Nichols  v.  Bucknam  (1875) 
117  Mass.  488,  491;  and  see  Xutter  v.  Sydenstrieker  (1877)   11  W.  Va.  535. 

In  the  leading  case  of  Exall  v.  Partridge  (1799)  8  T.  R.  308,  the  plaintiff 
had  deposited  his  coach  with  the  defendant,  a  coachmaker,  from  whom  it  was 
taken  as  a  distress  by  the  landlord  for  rent  in  arrear.  Lord  Kenyon,  his 
brothers  concurring,  reversed  his  nisi  prius  ruling,  denying  relief,  and  per- 
mitted a  recovery  against  the  coachmaker  for  money  paid  by  the  owner  to 
secure  his  carriage  from  the  landlord.  Lord  Kexyon  denied  that  relief  de- 
pended on  the  theory  that  "where  one  person  is  benefited  by  the  payment  of 
money  to  another,  the  law  raises  an  assumpsit  against  the  former."  In  Eng- 
land r.  ]\rarsden  (186G)  L.  R.  1  C.  P.  529.  the  Common  Pleas  limited  Exall  r. 
Partridge  by  refusing  to  extend  it  to  cases  where  the  plaintiff's  property  was 
in  the  defendant's  hands  for  the  benefit  of  the  owner.  Rut  in  the  later  case  of 
Edmunds  v.  \Yallingford  (1885)  L.  R.  14  Q.  B.  Div.  811.  England  r.  :\Iarsden 
was  questioned  and  Exall  r.  Partridge  sustained.  Tlie  English  doctrine  now 
appears  in  accord  with  the  principal  case.  See  also  Johnson  v.  R.  M.  S. 
Packet  Co.  (1807)  L.  R.  3  C.  P.  38.— Ed. 


222  ELLIOTT    I'.    SWAETWOUT.  [bOOK   11. 

The  action  was  assumpsit,  to  recover  from  the  defendant  the  sum  of 
thirty-one  hundred  dollars  and  seventy-eight  cents,  received  by  him 
for  duties,  as  collector  of  the  port  of  New  York,  on  an  importation 
of  worsted  shawls  with  cotton  borders,  and  worsted  suspenders  with 
cotton  straps  or  ends.  The  duty  was  levied  at  the  rate  of  fifty  per 
centum  ad  valorem,  under  the  second  clause  of  the  second  section  of 
the  act  of  the  14th  of  July,  1832,  entitled  "An  act  to  alter  and  amend 
the  several  acts  imposing  duties  on  imports,"  as  manufactures  of 
wool,  or  of  which  wool  is  a  component  part.  The  plea  of  non-assumpsit 
was  pleaded  by  the  defendant  in  bar  of  the  action. 

The  following  points  were  presented  during  the  progress  of  the  trial 
for  the  ouinion  of  the  judges ;  and  on  which  the  judges  were  opposed 
in  opinion^ : — 

Second.  Whether  the  collector  is  personally^  liable  in  an  action  to 
recover  back  an  excess  of  duties,  paid  to  him  as  collectQr4_and  by.him, 
in  the  regular  or  ordinary  course  of  his  duty,  paid  into  the  treasury_pf 
the'^TJnited  States  ;Jie,  the  collector,  acting  in  good  faith,  and  under 
instructions  from  the  treasury  department,  and  no  protest  being  made 
atrthe  time  of  paymenj:,  or  notice  not  to  pay  the  money  over,  or  inten- 
tion to  sue  to  recover  back  the  amount  given  him» 

Third.  Whether  the  collector  is  personally  liable  in  an  action  to 
recover  back  an  excess  of  duties  paid,  tojiim  as  collector,  and  l)y  him 
paid,  in  the  regular  and  ordinary  course  of  his  duty,  into  the  treasury 
of  the  United  States,  he,  the  collector,  acting  in  good  faith,  and  under 
instructions  from  the^ treasury  department;  a  notice  having  been 
given,  at  the  iima  of  payment,  that  the  duties  were  charged  too  high, 
and  Ihat  the  party  paying  so  paid  to  get  possession  of  his  goods,  and 
intended  to  sue  to  recover  back  the  amount  erroneously  paid;  and  a 
notice  not  to  pay  over  the  amount  into  the  treasury. 

These  several  points  of  disagreement  were  certified  to  this  court  by 
the  direction  of  the  judges  of  the  Circuit  Court. 

Mr.  Justice  Thompson  delivered  the  opinion  of  the  court. 

2.  The  case  put  in  the  second  point  is  where  the  collector  has  re- 
ceived the  money  in  the  ordinary  and  regular  course  of  his  duty,  and 
has  paid  it  over  into  the  treasury,  and  no  objection  made  at  the  time 
of  payment,  or  at  any  time  before  the  money  was  paid  over  to  the 
United  States.  The  manner  in  which  the  question  is  here  put  pre- 
sents the  case  of  a  purely  voluntary  payment,  without  objecldmL-pr 
notice  not  to  pay  oyer  the  money,  or  any  declaration  made  to  the 
collector  of  an  intention  to  prosecute  him  to  recover  back  the  money. 
Itjs  therefore  to  be  considered  as  a  voluntary  payment,  by  mutual, 
mistake  of  law;  and,  in  such  case,  no  action  will  lie  to  recover  back  the 
mnnex-    The  construction  of  the  law  is  open  to  both  parties,  and  eacTT 

'Only  so  much  of  the  case  is  given  as  relates  to  the  second  and  third  points 
raised. — Ed. 


CHAP.    I.]  ELLIOTT    V.    SWARTWOUT.  223 

presumed  to  know  it.  Any  instruments  from  the  treasury  department 
could  not  change  the  law,  or  affect  the  rights  of  the  plaintiff.  He  was 
not  bound  to  take  and  adopt  that  construction,  lie  was  at  liberty  to 
judge  for  himself,  and  act  accordingly.  These  instructions  from  the 
treasury  seem  to  be  thrown  into  the  question  for  the  purpose  of 
showing,  beyond  all  doubt,  that  the  collector  acted  in  good  faith.  To 
make  the  collector  answerable,  after  he  had  paid  over  tlie  money, 
without  any  intimation  having  been  given  that  the  duty  was  not  legally 
charged^  cannot  be  sustained  upon  any  sound  principles  of  policy  or  of 
law.  There  can  be  no  hardship  in  requiring  the  party  to  give  notice  to 
the  collector  that  he  considers  the  duty  claimed  illegal,  and  put  him  on 
his  guard,  by  requiring  him  not  to  pay  over  the  money.  The  collector 
would  then  be  placed  in  a  situation  to  claim  an  indemnity  from  the 
government.  But  if  the  party  is  entirely  silent,  and  no  intimation 
of  an  intention  to  seek  a  repayment  of  the  money,  there  can  be  no 
ground  upon  which  the  collector  can  retain  the  money,  or  call  upon  the 
government  to  indemnify  him  against  a  suit.  It  is  no  sufficient  answer 
to  this  that  the  party  cannot  sue  the  United  States.  The  case  put  in  the 
question  is  one  where  no  suit  would  lie  at  all.  It  is  the  case  of  a 
voluntary  payment  under  a  mistake  of  law,  and  the  money  paid  over 
into  the  treasury ;  and  if  any  redress  is  to  be  had.  it  must  be  by  appli- 
cation to  the  favor  of  the  government,  and  not  on  the  ground  of  a 
legal  right. 

The  case  of  Morgan  v.  Palmer,  2  B.  &  C.  729,  was  an  action  for 
money  had  and  received,  to  recover  back  money  paid  for  a  certain 
license;  and  one  objection  to  sustaining  the  action  was  that  it  was 
a  voluntary  payment.  The  court  did  not  consider  it  a  voluntary  pay- 
ment, and  sustained  the  action;  but  Chief  Justice  Abbot^  and  the 
whole  court,  admitted  that  the  objection  would  have  been  fatal,  if 
well-founded  in  point  of  fact.  The  court  said  it  had  been  well  argued, 
that  the  payment  having  been  voluntary  it  could  not  be  recovered 
back  in  an  action  for  money  had  and  received.  And  in  Brisbain  v. 
Dacres,  5  Taunt.  154,  the  question  is  very  fully  examined  by  Gibbs,  J., 
and  most  of  the  cases  noticed  and  commented  upon,  and  with  the  con- 
currence of  the  whole  court,  except  Chambke,  J.,  he  lays  down  the 
doctrine  broadly,  that  where  a  man  demands  money  of  another,  as 
matter  of  right,  and  that  other,  with  a  full  knowledge  of  the  facts 
u^n  which  the  demand  is  founded,  has  paid  a  sum  of  m^e;^ 
voluntarily,  he  cannot  recover  it  back.  It  may  be,  says  the  judge,  that, 
upon  a  further  view,  he  may  form  a  different  opinion  of  the  law ;  and 
it  may  be,  his  subsequent  opinion  may  be  the  correct  one.  If  we  were 
to  hold  otherwise,  many  incoiivcnicMices  may  arise.  There  are  many 
doubtful  qucstious  of  law.  When  they  arise,  the  defendant  has  an 
option  either  to  litigate  the  (piestion,  or  submit  to  the  demand  and 
pay  the  money.  But  it  would  be  most  mischievous  and  unjust,  if  he 
who  has  acquiesced  in  the  right  by  such  voluntary  payment  should  be 


224  ELLIOTT    V.    SWARTWOUT.  [BOOK    II. 

at  liberty,  at  an}'  time  within  the  statute  of  limitations,  to  rip  ujj  the 
matter  and  recover  back  the  money.  This  doctrine  is  peculiarly 
applicable  to  a  case  where  the  money  has  been  paid  over  to  the  public 
treasury,  as  in  the  question  now  under  consideration.  Lord  Eldon 
in  the  case  of  Bromley  v.  Holland,  7  Vesey,  23,  approves  the  doctrine, 
and  says  it  is  a  sound  principle  that  a  voluntary  payment  is  not  re- 
coverable back.  In  Cox  v.  Prentice,  3  M.  &  S.  348,  Lord  Ellex- 
BOEOUGH  says :  "I  take  it  to  be  clear,  that  an  agent  who  receives  money 
for  his  principal  is  liable,  as  a  principal,  so  long  as  he  stands  in  his 
original  situation,  and  until  there  has  been  a  change  of  circumstances, 
by  his  having  paid  over  the  money  to  his  principal,  or  done  somethingH^ 
equivalent  to  it."  And  in  Buller  v.  Harrison,  2  Cowp,  568,  Lord 
Maxsfield  says  the  law  is  clear,  that  if  an  agent  pay  over  money ^A 
which  has  been  paid  to  him  by  mistake,  he  does  no  wrong,  and  the^^ 
plaintiff  must  call  on  the  principal;  that  if,  after  the  payment  has 
been  made  and  before  the  money  has  been  paid  over,  the  mistake  is 
corrected,  the  agent  cannot  afterwards  pay  it  over  without  making 
himself  personally  liable.  Here,  then,  is  the  true  distinction:  When 
the  money  is  paid  voluntarily  and  by  mistake  to  an-agent,  andJieJiag, 
paid  it  over  to  his  principal,  he  cannot  be  made  personally  responsible ; 
biU  if,  before  paying  it  over,  he  is  apprised  of  the  mistake  and  rcj 
qmred  not  to  pay  it  over,  he  is  personally  liable^  The  principle  laid 
dowifhy  Lord  Ellenborough^  in  Townsend  v.  Wilson,  1  Campb.  396, 
cited  and  relied  upon  on  the  part  of  the  plaintiff,  does  not  apply  to  this 
case.  He  says,  if  a  person  gets  money  into  his  hands  illegally,  he 
cannot  discharge  himself  by  paying  it  over  to  another;  but  the  pay- 
ment, in  that  case,  was  not  voluntary ;  for,  says  Lord  Ellenborough, 
the  plaintiff  had  been  arrested  and  was  under  duress  when  he  paid  the 
money.  In  Stevenson  v.  Mortimer,  2  Cowp.  816,  Lord  Mansfield 
lays  down  the  general  principle,  that  if  money  is  paid  to  a  known 
agent,  and  an  action  is  brought  against  the  agent  for  the  money,  it 
is  an  answer  to  such  action  that  he  has  paid  it  over  to  his  principal. 
That  he  intended,  however,  to  apply  this  rule  to  cases  of  voluntary 
payments  made  by  mistake,  is  evident  from  what  fell  from  him  in 
Sadler  v.  Evans,  4  Bur.  1987.  He  there  said,  he  kept  clear  of  all 
payments  to  third  persons  but  where  it  is  to  be  a  known  agent ;  in 
which  case  the  action  ought  to  be  brought  against  the  principal,  unless 
in  special  cases,  as  under  notice,  or  main  fides;  which  seems  to  be  an 
admission  that  if  notice  is  given  to  the  agent  before  the  money  is  paid 
over,  such  payment  will  not  exonerate  the  agent.  And  this  is  a  sound 
distinction,  and  applies  to  the  two  questions  ])ut  in  the  second  and 
third  points  in  the  case  now  before  the  court.  In  the  former,  the 
payment  over  is  supposed  to  be  without  notice ;  and  in  the  latter  after 
notice  and  a  request  not  to  pay  over  the  money.  Tlie  answejvilie^^i 
to*4rhc-8e^ond  question  is.  that  under  the  facts  there  stated  the  eol- 
leetor  is  not  personally  lj_ablc. 


CHAP.    I.]  ELLIOTT    V.    SWARTWOUT.  225 

3.  The  case  put  by  the  third  point  is  where,  at  the  time  of  payment, 
notice  is  given  to  the  collector  that  the  duties  are  charged 
too  high,  and  that  the  party  paying  so  paid  to  get  possession 
of  his  goods;  and  accompanied  by  a  declaration  to  the  collector, 
that  he  intended  to  sue  him  to  recover  back  the  amount  errone- 
ously paid,  and  notice  given  to  him  not  to  pay  it  over  to  the 
treasui-y. 

This  ([uestion  must  be  answered  in  the  adirmative;  unless  the  broad 
proposiiion  can  be  maintained,  that  no  action  will  lie  against  a  col- 
lector to  recover  back  an  excess  of  duties  paid  him ;  but  that  recourse 
I  must  be  had  to  the  government  for  redress.  Such  a  principle  would  be 
carrying  an  execution  to  a  public  officer  beyond  any  protection  sanc- 
tioned by  any  principles  of  law  or  sound  public  policy.  The  case  of 
Irving  V.  Wilson  and  Another,  4  T.  R.  485,  was  an  action  for  money 
had  and  received,  against  custom-house  officers,  to  recover  back  money 
paid  to  obtain  the  release  and  discharge  of  goods  seized  that  were 
not  liable  to  seizure;  and  the  action  was  sustained.  Lord  Kexyox 
observed,  that  the  revenue  laws  ought  not  to  be  made  the  means  of 
oppressing  the  subject ;  that  the  seizure  was  illegal;  that  the  defendants 
took  the  money  under  circumstances  which  could  by  no  possibility 
justify  them ;  and,  therefore,  this  could  not  be  called  a  voluntary  pay- 
ment. 

The  case  of  Greenway  v.  Hurd,  4  T.  R.  554,  was  an  action  against 
an  excise  officer,  to  recover  back  duties  illegally  received;  and  Lord 
Kenyox  does  say,  that  an  action  for  money  had  and  received  will  not 
lie  against  a  known  agent,  but  the  party  must  resort  to  the  superior. 
But  this  was  evidently  considered  a  case  of  voluntary  payment.  The 
plaintiff  had  once  refused  to  pay,  but  afterwards  paid  the  money; 
and  this  circumstance  is  expressly  referred  to  by  Buller^  J.,  as  fixing 
the  character  of  the  payment.  He  says,  though  the  plaintiff  had  once 
objected  to  pay  the  money,  he  seemed  afterwards  to  waive  the  objection 
by  paying  it.  And  Lord  Kexyon  considered  the  case  as  falling  within 
the  principle  of  Sadler  v.  Evans,  4  Bur.  1084,  which  has  already  been 
noticed.  In  the  case  of  Snowdon  r.  Davis,  1  Taunt.  358,  it  was  de- 
cided that  an  action  for  money  had  and  received  would  lie  against  a 
bailiff,  to  recover  back  money  paid  through  compulsion,  under  color 
of  process,  by  an  excess  of  authority,  although  the  money  had  been 
paid  over.  The  court  say,  the  money  was  paid  by  the  plaintiff  under 
the  threat  of  a  distress;  and  although  paid  over  to  the  sheriff  and  by 
him  into  the  Exchequer,  the  action  well  lies ;  the  plaintiff  paid  it  under 
terror  of  process  to  redeem  his  goods,  and  not  with  intent  that  it  should 
be  paid  over  to  any  one.  The  case  of  Ripley  r.  Gelston.  0  Johns.  201, 
was  a  suit  against  a  collector  to  recover  back  a  sum  of  money  de- 
manded by  him  for  the  clearance  of  a  vessel.  The  plaintiff-  objected 
to  the  payment,  as  being  illegal,  but  paid  it  for  the  purpose  of  obtain- 
ing the  clearance,  and  the  monev  had  been  i)aid  bv  the  collector  into 


226  ELLIOTT    V.    SWARTWOUT.  [BOOK    II. 

the  branch  bank  to  the  credit  of  the  treasurer.  The  defence  was  put 
on  the  ground  that  the  money  had  been  paid  over ;  but  this  was  held  in- 
sufficient. The  money,  say  the  court,  was  demanded  as  a  condition  of 
the  clearance;  and  that  being  established,  the  plaintiff  is  entitled  to 
recover  it  back,  without  showing  any  notice  not  to  pay  it  over.  The 
cases  which  exempt  an  agent  do  not  apply.  The  money  was  paid  by 
compulsion.  It  was  extorted  as  a  condition  of  giving  a  clearance, 
and  not  with  intent  or  purpose  to  be  paid  over.  In  the  case  of  Clinton 
V.  Strong,  9  Johns.  369,  the  action  was  to  recover  back  certain  costs 
which  the  marshal  had  demanded  on  delivering  up  a  vessel  which  had 
been  seized,  which  costs  the  court  considered  illegal;  and  one  of  the 
questions  was  whether  the  payment  was  voluntary.  The  court  said 
the  payment  could  not  be  voluntary.  The  costs  were  exacted  by  the 
officer,  colore  officii,  as  a  condition  of  the  redelivery  of  the  property; 
and  that  it  would  lead  to  the  greatest  abuse  to  hold  that  a  payment 
under  such  circumstances  was  a  voluntary  payment  precluding  the 
party  from  contesting  it  afterwards.  The  case  of  Hearsey  v.  Pryn,. 
7  Johns.  179,  was  an  action  to  recover  back  toll  which  had  been 
illegally  demanded ;  and  Spencer,  J.,  in  delivering  the  opinion  of  the 
court,  savs  the  law  is  well  settled,  that  an  action  may  be  justained 
against  anagent  who  has  received  mdhey  to^whTcirthe  principal  had 
no  right,  if  the  agentrhas  had  notice  not  to  pay  it  t)ver.  And  in  the 
case  of  Fry  v.  Lockwood,  4  Cow.  456,  the  court  adopt?  the  principle, 
that  when  money  is  paid  to  an  agent  for  the  purpose  of  being  paid 
over  to  his  principal,  and  is  actually  paid  over,  no  suit  will  lie  against 
the  agent  to  recover  it  back.  But  the  distinction  taken  in  the  case  of 
Kipley  v.  Gelston  is  recognized  and  adopted;  that  the  cases  which 
exempt  an  agent  when  the  money  is  paid  over  to  his  principal  without 
notice,  do  not  apply  to  cases  where  the  money  is  paid  by  compulsion, 
or  extorted  as  a  condition,  etc.  From  this  view  of  the  cases,  it  may  be 
assumed  as  the  settled  doctrine  of  the  law,  that  where  money  is  illegally 
demanded  and  received  by  an  agent,  he  cannot  exonerate  himself  from 
personal  responsibility  by  paying  it  over  to  his  principal ;  if  Ee^EaHEad 
notice  not  to  pay  it  over.  The  answer,  therefore,  to  the  third  point 
must  be,  that  the  collector  is  personally  liable  to  an  action  to  recover 
back  an  excess  of  duties  paid  to  him  as  collector,  under  the  circum- 
stances stated  in  the  point ;  although  he  may  have  paid  over  the  money 
into  the  treasury. 

On  the  second  question,  it  is  the  opinion  of  this  court,  that,  under 
the  facts  as  stated  in  the  said  second  question,  the  collector  is  not 
personally  liable. 

On  the  third  question,  it  is  the  opinion  of  this  court  that  the  col- 
lector, under  the  circumstances  as  stated  in  the  said  question,  is  liable 
to  an  action  to  recover  back  an  excess  of  duties  paid  to  him  as  collector, 
although  he  may  have  paid  over  the  money  into  the  treasury.  Where- 
upon it  is  ordered  and  adjudged  by  this  court,  to  be  so  certified  to  the 


CHAP.    I.]  BROWN    V.  HODGSON.  227 

said  Circuit  Court  of  the  United  States  for  the  southern  ^district  of 
New  York.^ 


3,    IN  DISCHARGE  OF  AN   OBLIGATION. 

(a)  The  Doctrine  in  General. 


BROWN  V.  HODGSON. 

Common  Pleas,  1811. 

[4  Taunton,  189.] 

Payne  sent  butter  to-London  eonsigned-t^^-Pen,  by  the  hands  of  the 
plaintiff,  a  carrier,  who  by  mistake  delivered  it  to  the  defendant,  and 
he  appropriated  it  to  his  own  use,  selling  it  and  receiving  the  money. 
Pen  had  paid  Payne  for  the  butter,  and  Brown,  admitting  the  mistake 
he_-had^made7paid  Penl;ho  value.  The  plaintifL  declared  for  goods 
sold_a^nd  delivered,  and  for  money  paid ;  and  delivered  to  the  defend- 
ant a  bill  of  particulars,  "To  seventeen  firkins  of  butter,  £5o  6s.," 
not  saying  for  goods  sold.  It  was  objected  for  the  defendant,  that 
there  was  no  contract  of  sale,  either  express  or  arising  by  implication 
of  law  between  the  parties,  upon  this  transaction,  and  that  although 
the  plaintiff  might  have  recovered  in  trover,  he  could  not  bring 
assumpsit  for  goods  sold ;  the  count  for  money  paid  was  not  adverted 
to  at  the  trial.    The  jury  found  a  verdict  for  the  plaintiff. 

Vaughan,  Serjt.,  in  this  term,  obtained  a  rule  nisi  to  set  aside  the 
verdict ;  and 

Shepherd,  Serjt.,  now  showed  cause  against  it. 

Mansfield,  C.  J.  At  the  trial  my  attention  was  not  called  to  the 
count  for  money  paid,  but  upon  this  count  I  think  the  action  may  be 
sustained.  The  plaintiffs  _pax  Pen  on  account  of  these  goods  being 
wrongfully  detained  by  TTodgson  ^  the\'  pay  the  value  to  the  person 
to  whom  both  they  and-^^i  were  bou^d_to  pay  it ;  and- this,  therefore, 
is  "not  the  case  of  a  man  officiously  and  without  reason  paying  money 
for  another;  and  therefore  the  action  may  be  supported7"  As  to  the 
oKjection  taken  respecting  the  bill  of  particulars,  bills  of  particulars 

'Tn  3  Notes  on  U.  S.  Reports  (Rose)  553,  will  be  found  an  elaborate  note 
on  this  ease,  in  which  are  collected  the  federal  cases  following  or  distinf,nii^li- 
ing  it,  as  also  the  state  cases  approving  or  disapproving  its  doctrine.  Cf.  Atlee 
V.  Backhouse  (1838)  3  M.  &  W.  633;  Taylor  r.  Board  of  Health  (1855) 
31  Pa.  St.  73;  Joyner  v.  Third  School  Dist.  (1840)  3  Cash.  567:  Chegaray  r. 
Mayor  (1853)  2  Duer,  521;  Sumner  v.  First  Parish,  etc.  (1826)  4  Pick- 
361.— Ed. 


228  DAwsox  V.  LiXTON.  [book  II. 

are  not  to  be  construed  with  all  the  strictness  of  declarations;  this 
bill  of  particulars  has  no  reference  to  any  counts,  and  it  sufficiently 
expresses  to  the  defendant  that  the  plaintiff's  claim  arises  on  account 
of  the  butter. 

Heath,  J.     We  must  not  drive  parties  to  special  pleaders  to  draw 
their  bills  of  particulars. 

Ride  discharged.''- 


DAWSON  V.  LIXTON. 

Kixg's  Bench,  1822. 

[5  Barnwell  £  Alderson,  521.] 

Assumpsit  upon  several  special  counts,  and  also  for  money  paid 
to  the  use  of  the  defendant.    Plea,  the  general  issue. 

A  local  act  provided  that  a  drainage  tax  should  be  paid  by  the 
tenants  of  the  lands  and  grounds  charged  with  the  same  respectively ; 
that  such  tenants  should  and  might  deduct  and  retain  the  tax  in  ques- 
tion out  of  the  rents  payable  to  their  landlords ;  that  in  case  of  neglect 
to  pay,  the  tax  might  be  levied  by  distress  on  goods  and  chattels 
found  on  the  lands  charged  with  the  tax  in  arrear;  that  if  the  land 
should  be  untenanted,  or  no  sufficient  distress  could  be  found,  the  lands 
and  goods  chargeable  should  remain  as  a  surety  for  the  payment 
thereof,  taken  possession  of,  and  rented  in  discharge  of  the  tax.     • 

x\t  the  trial,  it  was  contended  that  the  succeeding  tciiant  was  liable 
for  the  tax  and  that  the  action  should  have  been  against  him.- 

Abbott,  C.  J.  R  is  clear  that  this  tax  must  ultimately  jail  on  the 
landlord,  and  that  the  plaintiff  has  paid  his  money  in  discliarge  oi  it ; 
hc"Tias"'therefore  a  right  to  call  upon  the  landlord  to  repay  it  to  him. 
I  think  the  meaning  of  the  act  was  to  make  the  tax  payable  by  the 
tenant  in  whose  time  it  became  due,  and  who  received  the  benefit 
of  the  drainage.  If  it  had  then  been  paid,  the  plaintiff  might  have 
deducted  it  from  his  rent;  but  as  he  was  not  caTlecl^  on  to  pav  it  tiH 
a£ler  the  rent  had_beeii-^pai4T  -L-tEmK  lie4ms-jaow~th£rxj^ht  to  require. 
tJie_iandlord  to  reimburse  him.  It  might  be  very  hard,  if  the  new 
tenantwere  to  be  compelled  to  advance  money  to  pay  the  tax  for  his 

'Sills  V.  Lainf,'  (1814)  4  Canipb.  81,  a  nisi  prius  decision  of  Lord  Ellen- 
BOBOUGii,  is  contra. 

For  kindred  cases  and  a  diseussion  of  the  principle  involved,  see  2  Green- 
leafs  Evidence  (16th  ed.)  §  114;  1  Smith's  Leading  Cases,  Gth  Am.  ed.,  381; 
9th  Am.  ed.,  443,  note.  And  see  the  following  additional  cases:  Van  Santen  v. 
Standard  Oil  Co.  (1880)  81  N.  Y.  171;  Metropolitan  R.  R.  Co.  v.  District  of 
Columbia  (1889)   132  U.  S.  1,  12.— Ed. 

'Statement  substituted  for  that  of  the  original  report. — Ed. 


CHAT.    I.]  LEWIS    V.    CAMPBELL.  229 

predecessor,  even  though  ultimately  he  would  be  entitled  to  recover 
it.  Here,  the  action  is  only  for  monfy  pnid  ior  the  dr-fondnnt.  and 
not  for^any  special  damage  arising  from  the  distress.  The  verdict  is 
therefore  right. 

Eule  discharged.^ 


LEWIS  V.  CAMPBELL. 

Common  Pleas,  1849. 

[8  Manning,  Granger  and  Scott,  541.] 

This  was  an  action  of  debt,  for  money  paid,  money  had  and  re- 
ceived, and  on  an  account  stated.  The  defendant  pleaded  that  she 
was  never  indebted. 

The  cause  was  tried  before  Wilde,  C.  J.,  at  the  London  sittings  after 
Hilary  term,  1848,  when  the  material  facts  appeared  to  be,  that  the 
plaintiff,  JolmJVilliam  Lewis,  being  indebted  to  EichardDukc  in  £112. 
16s.  6d.,  gave  him  an  order  for  payment  of  that  sum,  on  Macdonald  & 
M'Queen,  who  were  agents  to  the  plaintiff.  When  Duke  presented  the 
order  for  payment  Macdonald  &  M'Queen  refused  to  pay  the  money, 
but  t"ld  "Puke  tbn^  t^^'-y  wnnlrl  pay  the  amount  to  Mrs.  Campbcll^thc 
defendant-,  for  wbnm  they  wcrp  autbori/^prl  tn  pnllopt  rloKtc,  h-i  pnrf 
payment  of  a  debt  of  £350,  which  the  defendmif.,  r-lnimpfl  n-;;  f1ttp  to 
her  from  Duke.  ]\Iacdonald  &  M'Queen  accordingly  debited  the 
plaintiff',  and  credited  the  defendant,  with  the  amount  of  the  order,  and 
gave  the  plaintiff,  on  behalf,  and  in  the  name  of,  the  defendant,  on  the 
29th  of  August,  1843,  a  letter  stating  that  the  sum  of  £112.  IGs.  Gd., 
owing  by  the  plaintiff  to  Duke,  being  attached  by  her  in  the  hands  of 
the  plaintiff's  agents,  shejindertook  to  exonerate  and  bear  him  harjn- 
less  against  any  steps  which  Duke  might  take  against  him  in  resp>^t  of 
that  sum.  These  transactions  were  communicated  to  the  defendant, 
who  approved  of  what  her  agents  had  done,  and  claimed  the  amount 
mentioned  in  the  order,  as  a  debt  due  to  her  from  Macdonald  & 
M'Queen,  and  received  a  dividend  on  it,  when  they  became  bankrupts. 
Afterwards,  in  184G,  an  action  was  brought  bv  Duke  _iigam£L-the 
present  plaintiff',  which  was  defended,  in  his  name,  and  by  his  per- 

'But  compare  Spencer  r.  Parry   (1835)   .3  A.  &  E.  ."^31. 

SoLJL_trustee  under  a  will  who  paid  a  legacy  duty  upon  an  annuity  recov- 
ered the  amount  so  paid  in  assTiiiTpKrt  frtrm  the"  legatee.  Hales  v.  FreeiiTan 
(ISIOV  1  Brod.  &  B.  391;  so_where  the  plaintiff  dei^sited  with  defendant 
as  security  for  goods  sold,  a  bill  accepted  for  which  phiintitT  had  received  no_ 
value  anil  defendant  after  payment  of  the  goods  indorsed  the  bill  for  value. 
Bleaden  i'.  Charles  (1831)  7  Bing.  240;  but  see  Asprey  i;.  Levy  71^4T) 
10  M.  &  W.  851.— Ed. 


230  LEWIS  V.  CAMPBELL.  [BOOK   II. 

mission,  hy  Mrs.  Campbellijthe  present  defendant, — pleading,  amongst 
other  thingSj  that  the  debt  due  from  the  plaintiff  to  Duke  ha'd'^een 
prnS^hy  Ms  consent,  to  the  present  defendant.  This  defence,  however, 
Avas  unsuccessful;  and  thp  prpspnt  plaintiff  was  pompellprl  to-.pay 
:f.1  fiO  1  .Ss  nd  J  the  amount  for j?hich  Puke  obtained  judgment,  in 
order  to  avoid  being  taken  under  a  capias  ad  satisfaciendum. 

Upon  this  state  of  facts,  a  verdict  was  taken  for  the  plaintiff  for 
£160.  13s.  6d.,  with  the  liberty  to  the  defendant  to  move  to  enter  a 
nonsuit,  or  to  reduce  the  verdict  to  £112.  16s.  6d. 

Cur.  adv.  vult. 

WiLDE^  C.  J.,  now  delivered  the  judgment  of  the  court  [after  stat- 
ing the  facts,  ut  ante]  : — 

The  argument  turned  mainly  upon  the  question,  whether  the  count 
fof  money  paid,  was  sustained  by  the  facts  in  evidence.  And  Tn  the 
view  we  take  of  the  case,  it  will  not  be  necessary  to  discuss  any  other 
question.  It  appears  to  us,  that  the  defendant,  being  bound  by  her 
guarantee  to  indemnify  the_plaintiff  against  Duke's  action,  and  the 
plaintiff  having,  at  the  requestofthe  defendant,  taken  upon  himself 
the  character  of  defendant  in  that  action,  and  having  permitted  the 
defendant  to  conduct  the  defence,  and  the  defendant  having  acted  on 
that  permission,  an  4mpIi£xLcnntract  waa_jaised  on  jthe  part  of  the_^e- 
fendant,  to  pay  anything  which  might  be  necessary,  in  the  event^of  a 
ju^gnient_being  obtained  against  tlie  defendant7"forthe_proti^ction  of 
thg_ plaintifLagainst  Ihe  consequences  of  Uiat  judgment ;  and,  in  the 
event  of  the  defendant's  failure  to  make  such  payment,  that  an 
authority  from  her  was  to  be  implied,  authorizing  the  plaintiff  to 
make  the  payment  for  her,  so  as  to  make  it  money  paid  to  her  use. 

Thus  it  was,  that,  in  the  case  of  Howes  v.  Martin,  1  Esp.  N.  P.  C. 
162,  where  the  plaintiff  had  accepted  a  bill  for  the  defendant,  and 
had.  at  his  request,  defended  an  action  brought  on  the  bill,  and  had 
paid  the  debt  and  costs  recovered  in  that  action,  Lord  Kenyon  held 
that  the  amount  was  money  paid  by  the  plaintiff  to  the  use  of  the 
defendant,  on  the  ground  that,  as  the  defendant  was  personally  inter- 
ested, and  had  directed  the  defence  to  be  made,  by  which  he  might 
have  been  benefited,  the  money  must  be  considered  to  have  been  laid 
out  by  the  plaintiff  on  his  account  and  to  his  use. 

In  the  case  of  Brittain  v.  Lloyd,  14  M.  &  W.  762,  the  plaintiff,  an 
auctioneer  employed  by  the  defendant  to  sell  some  property,  had  in- 
curred a  liability  to  pay  the  auction-duty,  and  had  been  compelled  to 
pay  it;  and  the  court  held  that  he  might  recover  the  amount  as 
money  paid  to  the  defendant's  use.  The  reason  of  that  decision  ap- 
pears to  us  to  comprehend  the  present  case.  "It  is  clear,"  the  court 
says,  in  its  judgment,  "that  if  one  requests  another  to  pay  money  for 
him  to  a  stranger,  with  an  express  or  implied  undertaking  to  repay  it, 
the  amount,  when  paid,  is  a  debt  due  to  the  party  paying,  from  him  at 
whose  request  it  is  paid,  and  may  be  recovered  on  a  count  for  money 


CHAP.    I.]  LEWIS    V.    CAMPBELL.  231 

paid ;  and  it  is  wholly  immaterial  whether  the  money  is  paid  in 
discharge  of  a  debt  due  to  the  stranger,  or  as  a  loan  or  gift  to  him; 
on  which  two  latter  suppositions  the  defendant  is  relieved  from  no 
liability  by  the  payment.  The  request  to  pay,  and  the  payment 
according  to  it,  constitute  the  debt;  and  whether  the  request  be 
direct,  as  where  the  party  is  expressly  desired  by  the  defendant  to 
pay,  or  indirect,  where  he  is  placed  by  him  under  a  liability  to  pay. 
and  does  pay,  makes  no  difference.  If  one  asks  another,  instead  of 
paying  money  for  him,  to  lend  him  his  acceptance  for  his  accommoda- 
tion, and  the  acceptor  is  obliged  to  pay  it,  the  amount  is  money  paid 
for  the  borrower,  although  the  borrower  be  no  party  to  the  bill,  nor 
in  any  way  liable  to  the  person  who  ultimately  receives  the  amount. 
Tile  borrower,  by  requesting  the  acceptor  to  assume  that  character 
which  ultimately  obliges  him  to  pay,  impliedly  requests  him  to  pay; 
and  is  as  much  liable  to  repay,  as  he  would  be  on  a  direct  request  to  pay 
money  for  him,  with  a  promise  to  repay  it." 

The  case  mainly  relied  on  by  the  defendant,  on  the  argument  of  the 
present  case,  was  that  of  Spencer  v.  Parry,  3  Ad.  &  E.  331 ;  4  X.  &  M. 
TTO,  where  the  plaintiff  had  let  a  house  to  the  defendant,  at  a  rent  of 
£42,  "free  and  clear  of  all  land-tax  and  parochial  taxes,"  the  de- 
fendant left  the  premises  without  paying  the  taxes,  which  the  plaintiff, 
under  certain  local  acts,  was  compelled  to  pay :  the  court  held  that  this 
money  could  not  be  recovered  under  a  count  for  money  paid  to  the 
defendant's  use;  but  that  the  plaintiff  ought  to  have  sued  on  the  ex- 
press agreement  to  pay  £42,  clear  of  land-tax,  &c.,  remaking  (with 
reference  to  certain  cases  in  which  money  paid  to  relieve  a  defendant 
from  a  liability  under  which  he  lay  to  a  third  person  for  payment 
of  money,  was  recovered  under  the  count  for  money  paid)  that 
^Tiere  the  plaintiff''s  payment  relieved  the  defendant  from  no  liability 
but  what  arose  from  the  contract  between  them;  the  tax  remained 
due  by  his  default,  which  would  give  a  remedy  on  the  agreement. 
but  it  was  paid  to  one  who  had  no  claim  upon  him,  and  therefore  not 
to  his  use." 

If  the  Court  of  Queen's  Bench  in  that  case  are  to  be  considered  as 
deciding,  generally,  that  an  action  for  money  paid  would  lie  in  no 
case  where  the  defendant  was  not  relieved  from  a  liability  to  a  third 
person,  the  decision  would  apply  to  the  present  case,  but  certainly 
could  not  be  maintained,  inasmuch  as  there  are  many  cases,  as 
observed  by  the  court  in  the  case  of  Brittain  i\  Lloyd,  in  which  the 
action  can  be  maintained,  though  the  defendant  has  not  been  re- 
lieved from  a  liability ;  i.  e.  all  the  cases  in  which,  though  no  such 
relief  from  liability  occurs,  a  re(|uest  to  pay,  and  a  promise  to  repay, 
are  expressed  or  implied. 

But  the  Court  of  Queen's  Bench  is  not,  as  we  understand  the  case  of 
Spencer  v.  Parry,  to  be  taken  to  have  decided  any  such  general  prop- 
osition  in   that   case;   the   remark   above  eited   being   intended  only 


233  LEWIS    V.    CAMPBELL.  [BOOK    II, 

to  show  that  the  ground  of  an  inference  of  a  request  to  pay  and  a 
promise  to  repay,  which  is  afforded  by  a  compulsory  payment  to  a 
third  person,  by  the  plaintiff,  of  a  debt  due  to  that  third  person  by  the 
defendant,  as  in  Exall  v.  Partridge,  8  T.  R.  308,  where  the  plaintiff's 
goods  had  been  distrained  for  rent  due  from  the  defendants,  could  not 
exist  in  the  case  of  Spencer  v.  Parry.  That  case  was  decided  for  the 
defendant,  not  in  the  absence  of  that  ground  only,  but  because  the 
court  were  of  opinion  that  neither  that  ground  nor  any  other  on  which 
an  inference  of  a  request  to  pay  and  promise  to  repay,  could  be  sus- 
tained, was  to  be  found  in  that  case. 

In  that  case,  the  liability  of  the  plaintiff  to  pay  the  taxes  was  not 
incurred  at  the  request  of  the  defendant,  but  was  antecedent  to,  and 
was  not  affected  by,  the  transaction  between  the  plaintiff  and  defend- 
ant ;  and  the  court  by  no  means  decided  that,  if  the  plaintiff  incurs 
a  liability  at  the  request  of  the  defendant,  though  for  a  payment  to 
which  the  defendant  was  not  previously  liable,  money  paid  would  not 
lie.  In  the  argument  of  that  case,  a  case  having  been  referred  to, 
where  an  action  had  been  defended  by  the  plaintiff  at  the  request  of 
the  defendant,  in  which  the  plaintiff  had  been  obliged  to  pay  the 
costs,  Patteson,  J.,  observed,  that,  in  that  case,  the  action  had  been 
defended  at  Hemley's  (the  defendant's)  request;  adding,  if  a  man 
pays  a  debt  for  another,  at  his  request,  no  doubt  he  may  recover  the 
amount  as  money  paid. 

We  do  not  think  that  the  present  case  is  open  to  the  objection,  that 
the  defendant,  having  expressly  agreed  to  indemnify  the  plaintiff,  can 
be  sued  only  on  the  special  contract,  and  that  no  implied  contract  to 
support  a  count  for  money  paid  is  to  be  inferred  from  that  agreement ; 
for,  even  if  it  were  to  be  conceded  that  such  a  count  could  not  be 
supported  by  the  evidence  of  a  contract  to  indemnify,  in  the  terms  of 
the  letter  of  August,  1843,  and  the  payment  by  the  plaintiff,  alone, 
we  think  there  is  good  ground  for  such  an  inference  in  the  present 
case,  where,  after  tlie  special  agreement,  the  plaintiff  permitted  tlie 
defendant  to  defend  the  action  in  his  name.  From  such  permission, 
and  from  the  conduct  of  the  defendant  in  acting  upon  it,  we  think 
an  authority  to  pay  on  account  of  the  defendant  such  sum  as  the 
plaintiff  might  be  compelled  to  pay  Duke,  to  relieve  himself  from  a 
capias  ad  satisfaciendum,  and  a  promise  to  repay  it,  are  to  be  inferred, 
supposing  them  not  to  be  included  in  the  special  contract  to  indem- 
nify. 

For  these  reasons,  we  think  the  rule  must  be  discharged. 

Rule  discharged.^ 

>Acfor(l:  Emery  v.  Hobson  (1873)  02  IVfe.  578,  in  which  the  briefs  of 
counsel    (practically  exhausting  the  autliorities)    are  printed  at  length. — Ed. 


CHAP.    I.]  GREAT   NORTHERN    RY.    CO.    V.    SWAFFIELD.  233 

GREAT  NORTHERN  RAILWAY  COMPANY  v.  SWAFFIELD. 

Court  of  Exchequer,  1874. 

[Law  Reports,  9  Exchequer,  132.] 

Appeal  from  the  Bedfordshire  county  court. 

This  was  an  action  brought  to  recover  the  sum  of  £17,  paid  by  the 
plaintiffs  to  a  livery  stable  keeper  for  the  keep  of  the  defendant's 
horse,  under  the  following  circumstances: 

The  defendant  sent  a  horse  by  the  plaintiff's  railway  directed  to 
himself  to  Sandy.  On  the  arrival  of  the  horse  at  Sandy  Station  at 
night  there  was  no  one  to  meet  it,  and  the  plaintiffs,  having  no  ac- 
commodation at  the  station,  sent  the  horse  to  a  livery  stable.  The 
defendant's  servant  soon  after  arrived  and  demanded  the  horse;  he 
was  referred  to  the  livery  stable  keeper,  who  refused  to  deliver  the 
horse  except  on  payment  of  charges  which  were  admitted  to  be  reason- 
able. On  the  next  day,  the  defendants  came  and  demanded  the  horse, 
and  the  station-master  offered  to  pay  the  charges  and  let  the  defendant 
take  away  the  horse ;  but  the  defendant  declined  and  went  away  with- 
out the  horse,  which  remained  at  the  livery  stable. 

The  plaintiffs  afterwards  offered  to  deliver  the  horse  to  the  defend- 
ant at  Sandy  without  payment  of  any  charges,  but  the  defendant 
refused  to  receive  it  unless  delivered  at  his  farm  and  with  payment 
of  a  sum  of  money  for  his  expenses  and  loss  of  time. 

Some  months  after,  the  plaintiffs  paid  the  livery  stable  keeper  his 
charges,  and  sent  the  horse  to  the  defendant,  who  received  it. 

The  case  was  heard  (without  a  jury)  before  the  learned  judge  of  the 
county  court,  who  gave  judgment  for  the  defendant;  the  plaintiffs 
appealed. 

The  question  stated  for  the  opinion  of  the  court  was,  wliether  the 
plaintiffs  were  entitled  to  recover  the  whole  or  any  part  of  the  livery 
charges  from  the  defendant ;  and  if  the  court  should  be  of  opinion  that 
they  were  so  entitled,  judgment  was  to  be  entered  for  them  for  the 
amount  of  the  charges,  or  such  part  thereof  as  the  court  should  tliink 
fit,  with  such  costs  as  the  court  should  direct.^ 

Kelly,  C.  B.  We  are  all  clearly  of  opinion  that  this  judgment 
must  be  set  aside,  and  judgment  entered  for  the  plaintiffs  for  £17. 
It  appears  that  the  defendant  caused  a  horse  to  be  sent  by  the  plain- 
tiffs" railway  to  Sandy  station;  but  the  horse  was  not  directed  to  be 

"The  defendant  had  previously  brought  an  action  apainst  the  ]ih\intiff3 
for  the  detention  of  the  horse;  the  phiint ill's  paid  money  into  eourt  in  respect 
of  tlu'  (Utentioii  of  tlu-  horse  before  the  defendant's  refnsal  to  receive  him. 
Tile  rause  was  triid  before  Bkamwkm,.  B..  at  t!>e  Bedford  summer  assizes, 
1S7;5.  and  a  verdict  was  found  for  tlie  tlien  defendants,  the  now  plaintiflFs. 


234  GREAT    XORTHERX    RY.    CO.    V.    SWAFFIELD.  [BOOK    II. 

taken  to  any  particular  place.  The  owner  ought  to  have  had  some  one 
ready  to  receive  the  horse  on  his  arrival  and  take  him  away;  but  no 
one  was  there.  It  does  not  appear  that  there  was  at  the  station  any 
stable  or  other  accommodation  for  the  horse ;  and  the  question  arises, 
what  was  it,  under  those  circumstances,  the  plaintiffs'  duty,  and  con- 
sequently what  was  it  competent  for  them  to  do?  I  think  we  need  do 
no  more  than  ask  ourselves,  as  a  question  of  common  sense  and  com- 
mon understanding,  had  they  any  choice?  They  must  either  have 
allowed  the  horse  to  stand  at  the  station, — a  place  where  it  would  have 
been  extremely  improper  and  dangerous  to  let  it  remain ;  or  they  must 
have  put  it  in  safe  custody,  which  was  what  in  fact  they  did  in  placing 
it  in  the  care  of  the  livery  stable  keeper.  Presently  the  defendant's  ser- 
vant comes  and  demands  the  horse.  He  is  referred  to  the  livery 
stable  keeper,  and  it  may  be  (I  do  not  say  it  is  so)  that  upon  what 
passed  on  that  occasion  the  defendant  might  have  maintained  an 
action  against  the  plaintiffs  for  detaining  the  horse.^  But  the  next 
day  the  defendant  comes  himself ;  the  charges  now  amount  to  2s.  6d. ; 
an  altercation  takes  place  about  this  trumpery  sum,  and  ultimately 
the  station-master  offers  to  pay  the  charges  himself  if  the  defendant 
will  take  the  horse  away;  but  the  defendant  refuses,  and  leaves  the 
horse  at  the  stable.  Then  a  correspondence  ensues  between  the  parties, 
in  which  the  defendant  is  told  that  he  can  have  the  horse  without 
payment  if  he  sends  for  it,  but  he  refuses,  and  says  that  unless  the 
horse  is  sent  to  him  with  30s.  for  expenses  and  loss  of  time  by  to- 
morrow morning,  he  will  not  accept  it  at  all;  and  he  never  sends  for 
the  horse.  Meanwhile  the  plaintiffs  run  up  a  bill  of  £17  with  the  livery 
stable  keeper  with  whom  they  placed  the  horse,  which  they  ultimately 
have  to  pay;  and  at  last  they  send  the  horse  to  the  defendant,  who 
receives  it ;  and  they  now  sue  him  for  the  amount  so  paid. 

I  am  clearly  of  opinion  that  the  plaintiffs  are  entitled  to  recover. 
My  Brother  Pollock  has  referred  to  a  class  of  cases  which  is  identical 
with  this  in  principle,  where  it  has  been  held  that  a  shipowner  who, 
through  some  accidental  circumstance,  finds  it  necessary  for  the  safety 
of  the  cargo  to  incur  expenditure,  is  justified  in  doing  so,  and  can 
maintain  a  claim  for  reimbursement  against  the  owner  of  the  cargo. 
That  is  exactly  the  present  case.  The  plaintiffs  were  put  into  much 
the  same  position  as  the  shipowner  occupies  under  the  circumstances 
I  have  described.  They  had  no  choice,  unless  they  would  leave  the 
horse  at  the  station  or  in  the  high  road,  to  his  own  danger  and  the 
danger  of  other  people,  but  to  place  him  in  the  care  of  a  livery  stable 
keeper,  and  as  they  are  bound  by  their  implied  contract  with  the  livery 
stable  keeper  to  satisfy  his  charges,  a  right  arises  in  them  against 
the  defendant  to  be  reimbursed  those  charges  which  they  have  incurred 
for  his  benefit. 

*See  note  on  previous  page. 


CHAP.    I.]  GREAT    NORTHERN    HY.    CO.    V.    SWAFFIELD.  235 

PiGOTT,  B.  I  am  of  the  same  opinion.  I  do  not  think  we  have  to 
deal  with  any  question  of  lien.  We  have  only  to  see  whether  the 
plaintiffs  necessarily  incurred  this  expense  in  consequence  of  the 
defendant's  conduct  in  not  receiving  the  horse,  and  then  whether, 
under  these  circumstances,  the  defendant  is  under  an  implied  obliga- 
tion to  reimburse  them.  1  am  clearly  of  opinion  that  he  is.  The  horse 
was  necessarily  put  in  the  stable  for  a  short  time  before  the  defendant's 
man  arrived.  I  give  no  opinion  on  what  then  passed,  whether  the 
man  was  right,  or  whether  the  plaintiffs  were  right ;  I  think  it  is  not 
material.  On  the  following  day  the  defendant  comes  himself ;  and 
the  basis  of  my  judgment  is,  that  at  that  time  the  station-master 
offered,  rather  than  the  defendant  should  go  away  without  the  horse, 
to  pay  the  charge  out  of  his  own  pocket;  but  the  defendant  de- 
clared he  would  have  nothing  to  do  with  it,  and  went  away.  That  I 
understand  to  be  the  substance  of  what  was  proved ;  and  if  that  be  so, 
it  shows  to  me  that  there  was  a  leaving  of  the  horse  by  the  defendant 
in  the  possession  of  the  carriers,  and  a  refusal  to  take  it.  Then  what 
were  the  carriers  to  do?  They  were  bound,  from  ordinary  feelings 
of  humanity,  to  keep  the  horse  safely  and  feed  him  ;  and  that  became 
necessary  in  consequence  of  the  defendant's  own  conduct  in  refusing 
to  receive  the  animal  at  the  end  of  the  journey  according  to  his  con- 
tract. Then  the  defendant  writes  and  claims  the  price  of  the  horse ; 
and  then  again,  in  answer  to  the  plaintiffs'  offer  to  deliver  the  horse 
without  payment  of  the  charges,  he  requires  delivery  at  his  farm  and 
the  payment  of  30s. ;  in  point  of  fact,  he  again  refuses  the  horse. 
Upon  the  whole,  therefore,  I  come  to  the  conclusion  that,  whoever  was 
right  on  the  night  when  the  horse  arrived,  the  defendant  was  wrong 
when,  on  the  next  day,  he  refused  to  receive  him ;  that  the  expense 
was  rightly  incurred  by  the  plaintiffs ;  and  that  there  was,  under  these 
circumstances,  an  implied  contract  by  the  defendant  entitling  the 
plaintiff's  to  recover  the  amount  from  him. 

Pollock,  B.  I  am  of  the  same  opinion.  If  the  case  had  rested 
on  what  took  place  on  the  night  when  the  horse  arrived,  I  should  have 
thought  the  plaintiffs  wrong,  for  this  reason,  that  although  a  common 
carrier  has  by  the  common  law  of  the  realm  a  lien  for  the  carriage,  he 
has  no  lien  in  his  capacity  as  warehouseman ;  and  it  was  only  for  the 
warehousing  or  keeping  of  this  horse  that  the  plaintitTs  could  have 
made  any  charge  against  the  defendant. 

But  the  matter  did  not  rest  there;  for  it  is  the  reasonable  inference 
from  what  is  stated  in  the  case,  that  on  the  next  day,  when  the  de- 
fendant himself  came,  he  could  have  had  the  horse  without  the  pay- 
ment of  anything;  but  he  declined  to  take  it,  and  went  away.  Then 
comes  the  question,  first.  What  was  the  duty  of  the  plaintiffs,  as 
carriers,  with  regard  to  the  horse  ?  and  secondly.  If  they  incurred  any 
charges  in  carrying  out  that  duty,  could  they  recover  them  in  any 
form  of  action  against  the  owner  of  the  horse?    Now,  in  my  opinion 


236  GREAT  NOKTHERN  RY.  CO.  V.  SWAFFIELD.  [BOOK    II. 

it  was  the  duty  of  the  phiintiffs,  as  carriers,  although  the  transit  of 
the  horse  was  at  an  end,  to  take  such  reasonable  care  of  the  horse  as 
a  reasonable  owner  would  take  of  his  own  goods;  and  if  they  had 
turned  him  out  on  the  highway,  or  allowed  him  to  go  loose,  they 
would  have  been  in  default.  Therefore  they  did  what  it  was  their  duty 
to  do.  Then  comes  the  question,  Can  they  recover  any  expenses  thus 
incurred  against  the  owner  of  the  horse?  As  far  as  I  am  aware, 
there  is  no  decided  case  in  English  law  in  which  an  ordinary  carrier 
of  goods  by  land  has  been  held  entitled  to  recover  this  sort  of  charge 
against  the  consignee  or  consignor  of  goods.  But  in  my  opinion  he  is 
so  entitled.  It  has  been  long  debated  whether  a  shipowner  has  such 
a  right,  and  gradually,  partly  by  custom  and  partly  by  some  opinions 
of  authority  in  this  country,  the  right  has  come  to  be  established. 
It  was  clearly  held  to  exist  in  the  case  of  Notara  v.  Henderson,  L.  E. 
7  Q.  B.  235,  at  pp.  230-235,  where  all  the  authorities  on  the  subject 
are  reviewed  with  very  great  care;  and  that  case,  with  some  others, 
was  cited  and  acted  upon  by  the  privy  council  in  the  recent  case  of 
Cargo  ex  Argos,  L.  R.  5  P.  C.  13-i.  The  privy  council  is  not  a  court 
whose  decisions  are  binding  on  us  sitting  here,  but  it  is  a  court  to  whose 
decisions  I  should  certainly  on  all  occasions  give  great  weight :  and 
their  judgment  on  this  point  is  clearly  in  accordance  with  reason  and 
justice.  It  was  there  said,  L.  R.  5  P.  C.  p.  164  (after  referring  to  the 
observations  of  Sir  James  Mansfield^  C.  J.,  in  Christy  v.  Row, 
1  Taunt.  300),  "The  precise  point  does  not  seem  to  have  been  subse- 
quently decided,  but  several  cases  have  since  arisen  in  which  the  nature 
and  scope  of  the  duty  of  the  master,  as  agent  of  the  merchant,  have 
been  examined  and  defined."  Then,  after  citing  the  cases,  the  judg- 
ment proceeds :  "It  results  from  them,  that  not  merely  is  a  power 
given,  but  a  duty  is  cast  on  the  master,  in  many  cases  of  accident  and 
emergency,  to  act  for  the  safety  of  the  cargo  in  such  manner  as  may 
be  best  under  the  circumstances  in  which  it  may  be  placed ;  and  that, 
as  a  correlative  right,  he  is  entitled  to  charge  its  owner  with  the  ex- 
penses properly  incurred  in  so  doing."  That  seems  to  me  to  be  a 
sound  rule  of  law.  That  the  duty  is  imposed  upon  the  carrier,  I  do 
not  think  any  one  has  doubted ;  but  if  there  were  that  duty  without 
the  correlative  right,  it  would  be  a  manifest  injustice.  Therefore, 
upon  the  whole  of  the  circumstances,  I  come  to  the  conclusion  that  the 
claim  of  the  company  was  a  proper  one,  and  that  the  judgment  of  the 
learned  judge  of  the  county  court  must  be  reversed. 

Ampiilett,  B.  I  am  of  the  same  opinion.  It  appears  to  me  tliat  this 
case,  though  trumpery  in  itself,  involves  important  princijiles.  I  think 
it  is  perfectly  clear  that  the  railway  company,  when  the  horse  arrived 
at  the  station,  and  no  one  was  there  to  receive  it,  were  not  only  en- 
titled but  were  bound  to  take  reasonable  care  of  it.  As  a  matter  of 
common  humanity,  they  could  not  have  left  the  horse  without  food 
during  the  whole  night,  and  if  they  had  turned  it  out  on  to  the  road 


CHAP.    I.]  GREAT    XORTIIEKX    UY.    CO.    V.    SWAFFIELD.  237 

they  would  not  only  have  been  responsible  to  the  owner,  but  if  any 
accident  had  happened  to  the  general  public,  they  would  have  in- 
curred liability  to  them.  Therefore,  as  it  appears  to  me,  there 
was  nothing  that  they  could  reasonably  do  except  that  which 
they  did,  namely,  send  it  to  the  livery-stable  keeper  to  be  taken 
care  of. 

Then  coiiu's  the  question  discussed  by  my  Brother  Pollock,  and  on 
which  1  should  not  dissent  from  him  without  great  diffidence,  whether 
a  lien  existed  for  these  charges.  As  at  present  advised,  I  should  not 
wish  to  be  considered  as  holding  that  in  a  case  of  this  sort,  the  person 
who,  in  pursuance  of  a  legal  obligation,  took  care  of  a  horse  and  ex- 
pended money  upon  him,  would  not  be  entitled  to  a  lien  on  the  horse 
for  the  money  so  expended.  But  really  the  point  does  not  arise: 
whatever  might  be  the  case  with  regard  to  it,  that  question  appears  to 
me  to  be  got  rid  of  by  what  followed;  because, even  if  the  company  were 
wrong  in  claiming  payment  of  the  6d.,  or  whatever  the  sum  might  be, 
on  the  night  when  the  horse  arrived,  the  whole  thing  was  set  right  by 
them  on  the  next  day.  when  the  defendant  himself  came  to  the  station, 
and  the  station-master  offered  to  pay  the  charge  in  order  that  the 
defendant  might  have  the  horse.  The  defendant  refused  that  very 
reasonable  offer;  and  what,  then,  was  the  company  to  do  with  the 
horse?  What  else  should  they  do  but  leave  it  with  the  livery-stable 
keeper,  where  it  was  being  taken  care  of?  At  last,  after  a  bill  of  £17 
had  been  incurred,  the  horse  was  sent  to  the  defendant,  and  the  ques- 
tion is,  who  is  to  pay  that  sum  of  £17  ? 

Now,  who  was  in  the  wrong?  Even  if  the  plaintiffs  were  in  the 
wrong  originally,  of  which  I  am  by  no  means  sure,  in  not  giving  up 
the  horse  on  the  night  when  it  arrived,  at  any  rate  from  the  time  when 
that  was  set  right  it  was  the  defendant  who  was  in  the  wrong,  and  the 
company  who  were  in  the  right.  It  appears  to  me,  therefore,  quite 
clear  that  the  company  are  entitled  to  recover  the  money  which  they 
have  been  obliged  to  pa}^,  and  have  paid,  to  the  livery  stable  keeper, 
and  that  the  judgment  of  the  learned  judge  of  the  county  court  must 
be  reversed,  and  judgment  entered  for  the  plaintiffs. 

Judgment  reversed.^ 

'See  Soeva  r.  True  (1873)  53  X.  H.  G27  {ante  75),  in  which  this  case  is 
quoted  with  apjiroval. 

It  will  1)0  noted  that  this  ease  wes  decided  under  the  intluenee  of  sujv 
jiosed  admiralty  precedent.    The  English  common  law  would  seem  to  be  contra. 

In  a  very  carefully  considered  case.  British  Empire  ShipjiinG;  Co.  r.  Somes 
(1858)  E.  B.  &  E.  353,  it  appeared  that  a  ship  was  repaired  in  a  dock,  and 
that  the  owners  were  not  prepared  to  pay  the  price.  The  shipwrights  thereujuMi 
gave  notice  that  they  would  detain  the  siii])  and  claim  £21  a  day  for  the  use  of 
the  dock  (hiring  detention.  The  shipowner  finally  paid,  under  protest,  the 
amount  claimed,  togetlier  with  the  sum  claimed,  for  dock  rent.  On  a  suit 
to  recover  the  sum  thus  paid,  it   wa<  hold   tliat   the  shipwrights  had  no   lien 


238  2'  ^  ^^   ^^^^   RHODIA   DE   JACTU.  [BOOK   II. 

(6)    SPECIFIC  APPLICATIONS  OP  THE  DOCTRINE. 

DE  LEGE  RHODIA  DE  JACTU.^ 

Justinian,  Digest,  Lib.  14,  Tit.  3,  Art.  1, 

Paulus  lihro  secundo  sententiarum.  Lege  Rhodia  cavetur  ut  si 
levandae  navis  gratia  jactus  mercium  factus  est,  omnium  eontributione 
sarciatur  quod  pro  omnibus  datum  est. 

^quissimum  enim  est  commune  detrimentum  fieri  eorum  qui-, 
propter  amissas  res  aliorum,  consecuti  sunt  ut  merees  suas  salvas 
habuerunt.^ 

for  the  use  of  the  dock  during  the  detention.  In  the  course  of  his  judgment. 
Lord  Campbell,  C.  J.,  said: 

"It  has  been  held  that  a  coachmaker  cannot  claim  any  right  of  detainer 
for  standage,  unless  there  be  an  express  contract  to  that  effect,  or  the  owner 
leaves  his  property  on  the  premises  beyond  a  reasonable  time,  and  after 
notice  has  been  given  him  to  remove  it.     Hartley  v.  Hitchcock,  1  Stark.  408. 

•'The  right  of  detaining  goods  on  which  there  is  a  lien  is  a  remedy  to  the 
party  aggrieved,  which  is  to  be  enforced  by  his  own  act;  and,  where  such  a 
remedy  is  permitted,  the  common  law  does  not  seem  generally  to  give  him 
the  costs  of  enforcing  it.  Although  the  lord  of  a  manor  be  entitled  to  amends 
for  the  keep  of  a  horse  which  he  has  seized  as  an  estray,  Henly  v.  Walsh, 

2  Salk.  686,  the  distrainor  of  goods  which  have  been  replevied  cannot  claim 
any  lien  upon  them.  Bradyll  v.  Ball,  1  Bro.  C.  C.  427.  So,  where  a  horse 
was  distrained  to  compel  an  appearance  in  a  hundred  court,  it  was  held  that, 
after  appearance,  the  plaintiff  could  not  justify  detaining  the  horse  for  his 
keep.     Bui.  N.  P.  45. 

"If  cattle  are  distrained  damage  feasant,  and  impounded  in  a  pound  overt, 
the  owner  of  the  cattle  must  feed  them ;  if  in  a  pound  covert  or  close,  'the 
cattle  are  to  be  sustained  with  meat  and  drink  at  the  peril  of  him  that  dis- 
traineth,  and  he  shall  not  have  any  satisfaction  therefore.    Co.  Litt.  47b." 

On  appeal  to  the  Exchequer  Chamber  this  judgment  of  the  Q.  B.  was  af- 
firmed (E.  B.  &  E.  367),  and  on  further  appeal  to  the  House  of  Lords  this 
august  body  affirmed  the  judgment.  Somes  v.  British  Empire  Co.  (1860) 
8  H.  L.  337.— Ed. 

'It  is  not  the  intention  of  the  present  section  to  develop  in  detail  the  doc- 
trine of  general  average,  but  to  show,  in  a  general  way,  that  the  duty  to  con- 
tribute is  an  obligation  imposed  by  law,  or  custom,  having  the  force  of  law, 
and  as  such  recognized  and  enforced  as  a  quasi-contractual  duty  by  appro- 
priate suit  in  equity,  or  by  assumpsit  in  courts  of  common  law. 

For  the  various  instances  of  general  average,  see  Ames'  Cases  on  Admiralty, 
293,  et  seq.— Ed. 

-"The  whole  law  on  the  subject  is  founded  on  the  principle  that  the  loss 
to  the  individual  whose  goods  are  sacrificed  for  the  benefit  of  the  rest  is  to 
be  compensated  according  to  the  loss  sustained  on  the  one  hand  and  the  bene- 
fit derived  on  the  other."    Bovill,  C.  J.,  in  Fletcher  v.  Alexander  (1868)  L.  R. 

3  C.  P.  375,  382. 

In  other  words:   "Nemo  debet  locupletari  alienu  jactura." — Ed. 


CHAP.   I.]  BIRKLEY   AND   OTHERS   V.    PRESGRAVE.  339 

HICKS  V.  PALINGTON. 

Court  of  Kequests,  Easter  Term,  1590. 

[Moore,  297.] 

I  WAS  of  counsel  for  one  John  Hicks,  plaintiff,  against  Palington 
and  Others,  defendants,  merchants  of  Bristol ;  and  the  complaint  was 
for  average  of  a  ship  despoiled  of  certain  goods  shipped  from  Bristol 
to  Galicia  in  Spain.  And  Doctor  Dale,  Master  of  the  Requests,  said 
that  by  the  civil  law  average  is  not  due,  unless  the  goods  are  lost  in 
such  manner  that  the  rest  of  the  goods  in  the  ship  are  thereby  saved ; 
as,  if  goods  of  one  of  the  merchants  are  cast  into  the  sea  navis  levandi 
causa,  then  the  other  merchants  shall  pay  average,  for  the  other  goods 
are  saved  thereby.^  So  if  a  part  of  the  goods  be  given  to  a  pirate  by 
way  of  composition  to  save  the  rest;  but  not  if  a  pirate  seized  a  part 
by  force,  in  that  case  there  shall  be  no  average  paid.^  Still  it  was 
decreed  for  me,  because  the  merchants  had  agreed  to  pay  average  after 
the  ship  was  robbed. 


BIRKLEY   AND    OTHERS    v.    PRESGRAVE. 

King's  Bench,  1801. 

[1  East,  220.] 

The  plaintiffs  were  owners  of  the  ship  Argo,  and  the  defendant  was 
the  owner  of  a  cargo  of  wheat  on  board  the  said  ship — on  a  voyage 
from  Wisbeach  to  Sunderland.  As  the  ship  was  entering  the  harbor 
it  was  necessary  to  sacrifice  certain  of  the  ship's  tackle,  valued  at  £20, 
in  order  to  save  vessel  and  cargo.  It  likewise  appeared  that  the  vessel 
sustained  damage  to  the  value  of  £50. 

In  the  first  count  the  plaintiff  set  out  the  facts  specially  as  above 
and  the  declaration  contained  count  in  indebitatus  assumpsit  for 
money  due  and  payable  for  a  general  average;  the  other,  for  money 
paid,  laid  out  and  expended,  with  the  common  breach  to  the  whole. 
The  defendant  pleaded  non  assumpsit. 

On  trial,  the  Jury  found  a  verdict  of  £19  12s.  and  on  judgment 
entered  for  that  amount  an  appeal  was  taken. 

'Accord:  Whitefield  r.  Garrade  (lo40)  1  Sel.  PI.  in  Ad.  (Seld.  Soc'y)  95; 
Price  V.  Noble  (1811)  4  Taunt.  123;  Johnson  v.  Chapman  (1865)  19  C.  B. 
(N.  S.)  563;  Fletcher  v.  Alexander  (1868)  L.  R.  3  C.  P.  375,  381;  The 
St.  Joseph    (1855)    6  McLean,  573.— Ed. 

"Nesbitt  V.  Lushington  (1792)  4  T.  R.  783.— Ed. 


240  BIEKLEY   AND    OTHERS    V.    PRESGRAVE.  [BOOK    II. 

The  question  for  the  opinion  of  the  court  was,  whether  an  action  can 
be  maintained  for  the  loss,  damage,  and  expenses  above  mentioned?^ 

Lord  Kexyon,  C.  J.  If  the  hiw  confer  a  right,  it  will  also  confer 
a  remedy.  When  once  the  existence  of  the  right  is  established,  the 
Court  will  adopt  a  suitable  remedy,  except  under  particular  circum- 
stances where  there  are  no  legal  grounds  to  proceed  upon.  Here  the 
only  difficulty  pretended  is  the  ascertainment  of  the  proportion  to  be 
paid  of  the  general  loss  in  each  particular  case;  and  since  it  is 
admitted,  that  this  may  be  ascertained  in  equity,  there  seems  to  be 
no  reason  why  if  it  can  be  ascertained  without  recourse  to  equity,  an 
action  should  not  lie  to  recover  it  at  law.  But  it  is  objected,  that  this 
will  lead  to  a  multiplicity  of  actions.  The  same  difficulty,  however, 
must  occur  in  equity.^  Upon  the  whole,  this  action,  the  grounds  and 
nature  of  which  are  fully  set  out  in  tlie  special  count,  is  founded  in  the 
common  principles  of  justice.  A  loss  is  incurred,  which  the  law 
directs  shall  be  borne  by  certain  persons  in  their  several  proportions: 
where  a  loss  is  to  be  repaired  in  damages,  where  else  can  they  be 
recovered  but  in  the  courts  of  common  law;  and  wherever  the  law 
gives  a  right  generally  to  demand  payment  of  another,  it  raises  an 
implied  promise  in  that  person  to  pay.  With  respect  to  the  other 
question,  all  ordinary  losses  and  damage  sustained  by  the  ship  hap- 
pening imijiediately  from  the  storm  or  perils  of  the  sea  must  be  borne 
by  the  ship  owners.  But  all  those  articles  which  were  made  use  of  by 
the  master  and  crew  upon  the  particular  emergency,  and  out  of  the 
usual  course,  for  the  benefit  of  the  whole  concern,  and  the  other 
expenses  incurred,  must  be  paid  proportionably  by  the  defendant  as 
general  average.  The  rule  of  consulting  the  crew  upon  the  expediency 
of  such  sacrifices  is  rather  founded  in  prudence  in  order  to  avoid  dis- 
pute, than  in  necessity;  it  may  often  happen  that  the  danger  is  too 
urgent  to  admit  of  any  such  deliberation.  Here  however  there  can 
be  no  difficulty,  for  it  is  found  in  fact  that  the  cutting  of  the  cable 
which  belonged  to  the  ship  was  done  for  the  benefit  of  the  cargo  as 
well  as  the  ship. 

Grose,  J.  This  action  is  brought  to  recover  a  ratable  proportion 
of  a  certain  loss  and  damage,  and  expenses  which  have  been  incurred 
])y  the  plaintiffs  as  ship  owners  in  preventing  the  owner  of  the  cargo 
from  incurring  a  loss.  That  such  an  action  is  maintainable  I  have 
no  doubt.  If  there  be  not  many  instances  of  the  sort  to  be  found, 
it  is  probably  because  the  demand  has  been  submitted  to  without 
controversy:  for  I  understand  that  this  sort  of  damage  has  been  con- 
tinually settled  as  general  average  in  the  city  of  London.  Where  there 
is  a  right,  there  must  be  a  remedy;  and  there  can  be  no  other  remedy 

'This   statement,  much   abridged  aad  modified,   is  substituted  for  that  of 
the  original  report,  and  the  arguments  of  counsel  are  omitted — Ed. 
"His  Lordship's  discussion  of  this  question  is  omitted. — Ed. 


CHAP.    I.]  SIMONDS    AND    LODER   V.    WHITE.  241 

than  by  action  to  recover  damages.  It  is  true,  where  there  are  many 
owners  of  the  cargo  there  may  be  as  many  actions  brought,  but  that 
arises  from  the  necessity  of  the  thing;  and  I  should  still  say,  that 
they  are  all  liable  to  answer  for  their  respective  proportions. 

Lawrence,  J.  All  loss  which  arises  in  consequence  of  extraordi- 
nary sacrifices  made  or  expenses  incurred  for  the  preservation  of  the 
ship  and  cargo  come  within  general  average,  and  must  be  borne  pro- 
portionably  by  all  who  are  interested.  Natural  justice  requires  this. 
Then  the  only  argument  against  this  species  of  remedy  is  resolvable 
into  this,  that  the  plaintiff  chooses  to  take  a  ditliculty  upon  himself 
in  proving  the  amount  of  a  defendant's  interest  in  the  cargo  in  order 
to  ascertain  the  proportion  which  he  is  bound  to  pay,  instead  of  having 
recourse  to  a  court  of  equity,  where  he  can  obtain  proof  of  it  more 
easily,  and  thereby  facilitate  his  remedy.  But  that  objection  does 
not  prove  that  a  plaintiff  cannot  recover  in  an  action  whenever  he 
can  make  out  his  case  without  having  recourse  to  the  assistance  of  a 
court  of  equity. 

Le  Blanc,  J.  Unless  it  be  shewn  by  authority  that  the  action  does 
not  lie,  we  must  presume  that  it  does,  upon  the  common  principle 
of  justice,  that  where  the  law  gives  a  right  it  also  gives  a  remedy. 

Postea  to  the  Plaintiffs.^ 


SIMONDS  AND  LODER  v.  WHITE. 

King's  Bench,  1824. 

[2  Barneivall  and  Cresswell,  805.] 

Assumpsit  for  £106  3s.  Gd.,  as  money  paid  by  the  plaintiffs  to  the 
use  of  the  defendant. 

Abbott  C.  J.  now  delivered  the  judgment  of  the  Court.  The  ques- 
tion in  this  case  is,  whether  the  plaintiffs,  the  proprietors  of  certain 
goods  carried  on  board  the  defendant's  ship  from  Gibraltar  to  Peters- 
burgh,  and  who  were  compelled  at  Petersburgh  to  pay  to  the  defend- 

'See  Marsham  v.  Dutrey.  Select  Cas.  of  Evid.  58  S.  P. ;  Ma<rp-ath  r.  Church 
(1803)  1  Caines,  19G;  \Yhitteri(lge  v.  Norris  (180!))  6  Mass.  Rep.  125;  Sims  v, 
Gurney  &  al.  (1812)  4  Biiin.  513. 

"In  case  of  dispute,  the  contribution  may  be  recovered  either  by  a  suit  in 
equity  (S)iephcrd  &  Others  v.  W'light,  Shower's  Pari.  Cas.  18),  or  by  an 
action  at  law  ( Marsham  v.  Dutrey,  Select  Cases  of  Evid.  58 ;  Birkley  &  Others 
i\  Presp;rave,  1  East,  220;  Dodson  &  Others  r.  W'ilson.  3  Campbell,  480),  insti- 
tuted by  each  individual  entitled  to  receive,  against  each  party,  that  ought  to 
pay  for  the  amount  of  his  share."     Abbott's  Shipping   (5th  ed.)    362. 

See  also,  Strang,  Steel  &  Co.  v.  Scott  &  Co.  (1889)  L.  R.  14  A.  C.  GOl, 
(IOC— Ed. 


242  SIMONDS    AND    LODER    V.    WHITE.  [BOOK    II. 

ant,  in  order  to  obtain  possession  of  their  goods,  a  sum  of  money  as  a 
contribution  to  a  general  or  gross  average,  settled  at  Petershurgh  ac- 
cording to  the  law  of  Russia,  can  recover  back  so  much  of  the  money 
thus  paid,  as  would  not  have  been  charged  to  them  on  an  adjustment 
of  average  made  according  to  the  law  of  England,  the  ship  being  a 
British  ship,  and  all  the  parties  British  subjects.  And  we  are  all  of 
opinion  that  the  plaintiffs  cannot  recover  back  this  money. 

The  principle  of  general  average,  namely  that  all  whose  property 
has  been  saved  by  the  sacrifice  of  the  property  of  another  shall  con- 
tribute to  make  good  his  loss,  is  of  very  ancient  date,  and  of  universal 
reception  among  commercial  nations.  The  obligation  to  contribute, 
therefore,  depends  not  so  much  upon  the  terms  of  any  particu- 
lar instrument,  as  upon  a  general  rule  of  maritime  law.  The 
obligation  may  be  limited,  qualified,  or  even  excluded  by  the  special 
terms  of  a  contract,  as  between  the  parties  to  the  contract:  but 
there  is  nothing  of  that  kind  in  any  contract  between  the  parties  to 
this  cause.  There  are,  however,  many  variations  in  the  laws  and 
usages  of  different  nations  as  to  the  losses  that  are  considered  to  fall 
within  this  principle.  But  in  one  point  all  agree;  namely,  the  place 
at  which  the  average  shall  be  adjusted,  which  is  the  place  of  the 
ship's  destination  or  delivery  of  her  cargo.  I  believe  also,  that  all  are 
agreed  on  another  point;  namely,  that  the  master  is  not  compellable 
to  part  with  the  possession  of  goods  until  the  sum  contributable  in 
respect  of  them,  shall  be  either  paid  or  secured  to  his  satisfaction. 
This  appears  by  the  case  to  be  the  law  of  Russia.  This  power  is 
noticed  in  the  civil  law.  Dig.  lib.  14.  tit.  2.  2.  It  is  expressly  given  in 
the  Consulate  c.  98.,  recognized  by  Chirac  in  his  commentary  on  the 
Jugemens  d'  Oleron,  tit.  35.,  and  allowed  by  the  French  Ordinance 
of  Marine,  tit.  Du.  Jet.  art.  21.  If  then  the  average  is  to  be  adjusted  at 
the  place  of  destination,  by  what  law  shall  it  be  adjusted?^ 

The  law  of  the  country  [place  of  destination]  must  prevail.  And 
this  will  not  impugn  any  known  doctrine  or  rule  of  the  English  law. 
The  shipper  of  goods,  tacitly,  if  not  expressly,  assents  to  general 
average,  as  a  known  maritime  usage,  which  may,  according  to  the 
events  of  the  voyage,  be  either  beneficial  or  disadvantageous  to  him. 
And  by  assenting  to  general  average,  he  must  be  understood  to  assent 
also  to  its  adjustment,  and  to  its  adjustment  at  the  usual  and  proper 
place ;  and  to  all  this  it  seems  to  us,  to  be  only  an  obvious  consequence 
to  add,  that  he  must  be  understood  to  consent  also  to  its  adjustment 
according  to  the  usage  and  law  of  the  place  at  which  the  adjustment  is 
to  be  made.  I  am  to  be  understood  as  speaking  of  a  case  depending 
upon  general  rules  and  reason,  and  not  upon  a  special  or  particular 
contract.  It  is  of  infinite  importance  to  maritime  commerce,  that  its 
regulations  should  be  as  simple  and  as  few  in  number  as  general 

'The  discussion  of  this  question  is  omitted. — Ed. 


CHAP.    I.]  riRIB   &   CO.    V.   MIDDLE   DOCK   CO.  243 

justice  will  permit.  The  wisest  and  most  equitable  rules  may  occa- 
sionally, in  a  particular  case,  be  productive  of  an  inconvenience,  but 
such  occasional  and  particular  inconvenience  is  a  much  less  evil, 
than  the  confusion  and  uncertainty  that  never  fail  to  accompany  a 
multiplicity  of  minute  regulations.  For  these  reasons  we  are  of 
opinion  that  the  defendant  is  entitled  to  our  judgment. 

Judgment  for  the  defendant. 


PIEIE  &  CO.  V.  MIDDLE  DOCK  CO. 

Nisi  Prius,  Queen's  Bench  Division,  1881. 

[44  Law  Times,  N.  8.  436.] 

PiRiE  &  Co.  shipped  a  cargo  of  coals  upon  the  defendant's  ship, 
Attila,  to  be  carried  to  Singapore,  and  there  delivered  on  payment  of 
freight.  A  fire  broke  out  spontaneously  in  the  coals,  so  that  portions 
had  to  be  thrown  overboard,  and  the  remainder  were  so  wetted  and 
damaged  by  water  poured  upon  them  to  extinguish  the  fire  that  they 
were  necessarily  discharged  and  sold  at  a  port  of  refuge.  Owing  to 
the  fact  that  no  freight  was  payable  upon  them  at  the  port  of  refuge, 
they  realized  net  a  larger  sum  than  if  they  had  safely  reached  their 
destination;  but  the  freight  upon  them  was  wholly  lost.^ 

Watkin  Williams.  J.,^  delivered  a  written  judgment  to  the  follow- 
ing effect: — The  action  was  brought  by  the  plaintiffs,  who  are  mer- 
chants in  London,  against  the  defendants,  who  are  the  owners  of  the 
ship  Attila,  to  recover  the  net  proceeds  of  certain  cargo  sold  by  them 
in  a  damaged  state  at  a  port  of  refuge.  The  defendants  did  not  dispute 
their  liability  to  account  to  the  plaintiffs  for  the  proceeds  of  the  cargo, 
and  they  had  in  fact  paid  to  the  plaintiffs  a  large  portion  of  the 
amount,  but  they  claimed  to  be  entitled  to  retain  the  amount  now  in 
dispute  on  account  of  a  set-off  or  counter-claim  for  a  general  average 
contribution  from  the  cargo  for  the  loss  of  freight.  [The  learned 
judge  set  out  the  circumstances  at  length,  and  then  proceeded.] 

It  seems  to  me  that  the  only  question  in  the  case  is  whether  the 
operation  of  pouring  the  water  upon  the  coals  under  the  above  circum- 
stances, and  so  rendering  them  unfit  to  be  forwarded  to  their  destina- 
tion— causing  a  total  loss  of  the  freight  to  be  earned  by  their  delivery 
at  their  destination — can  be  considered  as  a  voluntary  sacrifice  of  the 
freight  of  the  coals  so  wetted  within  the  true  principles  of  general  aver- 
age. In  order  to  solve  this  question,  it  is  necessary  to  consider  what  are 
the  truc  principles  upon  which  the  right  to  a  general  average  contribu- 

'Shortened  statement  substituted  for  that  of  the  report. — Ed. 
j^      *A  considerable  portion  of  the  learned  judge's  opinion  is  omitted. — Ed. 


244  PIRIE  &  CO.   V.  MIDDLE  DOCK  CO.  [BOOK    II. 

tion  is  founded.  This  right  and  its  correlative  obligation  are  not 
founded  upon  any  contract,  nor  do  they  arise  out  of  any  relation 
created  by  contract  between  the  parties:  they  spring  from  a  rule  of 
law  applicable  to  all  persons  who  chance  to  have  interests  on  board  of 
a  ship  at  sea  exposed  to  some  common  danger,  threatening  the  safety  of 
the  whole.  It  is  a  law  founded  upon  justice,  public  policy,  and  con- 
venience, and  rests,  as  Mr.  Parsons  says  in  his  Maritime  Law,  vol.  1, 
p.  28G,  upon  reasons  which  are  so  obvious  that  it  is  not  surprising 
to  find  that  it  is  older  than  any  other  law  or  rule  in  force.  It  formed 
part  of  the  ancient  marine  law  of  Europe.  It  was  incorporated  into 
the  Roman  civil  law  from  the  code  of  Rhodes.  This  ancient  code, 
which  was  the  prevailing  law  at  least  a  thousand  years  before  the 
Christian  era,  is  probably  all  lost  with  the  exception  of  this  one  article, 
which  is  preserved  in  the  Digest  in  the  form  of  a  rubric  in  the  follow- 
ing terms:  "De  lege  Rhodia  de  jactu.  Lege  Rhodia  cavetur,  ut  si 
levandse  navis  gratia,  j actus  mercium  f actus  est  omnium  contributione 
sarciatur,  quod  pro  omnibus  datum  est."  "Concerning  the  Rhodian 
law  of  jettison.  By  the  Rhodian  law  care  is  taken  that,  if  for  the  sake 
of  lightening  the  ship,  a  jettison  of  merchandise  is  made,  that  which 
is  given  for  all  shall  be  made  good  by  a  contribution  of  all."  This, 
says  Parsons  (Maritime  Law,  p.  286),  is  the  foundation  of  the  law 
of  general  average,  and  all  besides  this  consists  only  of  the  rules  which 
have  been  devised  to  carry  this  principle  into  its  proper  effect  in  the 
great  variety  of  cases  and  through  the  many  consequences  which 
belong  to  its  application.  This  principle  of  law  must,  in  my  judgment, 
be  regarded  as  incorporated  in  and  forming  part  of  the  unwritten 
common  law  of  England.  The  principle  is  thus  laid  down  by  Malines 
in  the  "Lex  Mercatoria,"  published  in  1656,  and  Molloy  in  his  work, 
"De  Jure  Maritime,"  published  in  1744:  "Ships  being  freighted  at 
sea  are  often  subject  to  storms  and  other  accidents  in  which,  by  the 
ancient  laws  and  customs  of  the  sea,  in  extreme  necessity  the  goods, 
wares,  guns,  and  whatsoever  else  shall  be  thought  fit,  may  in  such 
extremity  be  flung  overboard.  The  ship  arriving  in  safety,  the  re- 
mainder must  come  into  the  average,  not  only  those  goods  which  pay 
freight,  but  all  those  that  have  obtained  safety  and  preservation  by 
such  ejection,  even  money,  jewels,  and  such  like  are  not  exempted." 
And  Molloy  goes  on  to  say  that  "King  William  the  Conqueror  and 
Henry  L  ratified  this  law  concerning  goods  cast  overboard  by 
mariners  in  a  storm  in  imitation  of  the  ancient  Rhodian  law 
'De  jactu.' "  This  is  confirmed  also  by  Bracton,  lib.  2,  fol.  41,  b.  n. 
3 ;  also  by  Selden  in  his  work  "De  Dominio  Maris,"  chap.  24,  p.  428. 
It  is  further  confirmed  l)y  a  statement  in  1  Rymer  Fasdera,  3rd  ed. 
p.  240,  that  Edward  I.  in  1285  sent  to  the  Cinque  Ports  letters  patent 
declaring  what  goods  were  liable  to  contribution;  yet  this  law  does 
not  appear  in  any  statute  or  written  ordinance  of  English  law. 
Emerigon,  in  his  famous  treatise  published  in  1783,  in  writing  upon 


CHAP.    I.]  PIUIE    &    CO.    V.    MIDDLE   DOCK    CO.  245 

this  subject,  says :  "The  ancient  laws  of  the  sea  are  the  sources  whence 
those  should  draw  who  wish  to  recur  to  principles.  These  include 
rules  so  much  the  more  sure  that  they  are  derived  from  the  nature 
of  things,  and  these  rules  form  a  part  of  the  Law  of  Nations.  They 
belong  consequently  to  every  age  and  every  country."  I  consider, 
therefore,  that,  in  solving  the  present  question,  which  is  stated  never 
to  have  been  before  decided,  I  am  bound  to  resort  to  the  principles 
of  the  maritime  law  as  expressed  in  the  maxim  from  the  code  of 
Rhodes  and  as  expounded  in  the  various  works  of  authority  upon  the 
subject. 

There  can  be  no  doubt  that,  according  to  the  universally  accepted 
principles  of  general  average,  the  following  conditions  must  concur  in 
order  to  give  rise  to  a  claim  for  contribution:  1.  There  must  be  a 
common  danger.  2.  There  must  be  a  necessity  for  the  sacrifice.  3. 
The  sacrifice  must  be  voluntary.  4.  It  must  be  a  real  sacrifice,  and 
not  a  mere  destruction  or  casting  off  of  that  which  had  become  already 
lost  and  consequently  o'f  no  value.  5.  There  must  be  a  saving  of  the 
imperilled  property  through  the  sacrifice.  The  question  in  a  case  like 
the  present  arises  from  the  necessity  of  drawing  the  line,  marking  the 
logical  distinction  between  the  necessity  for  the  sacrifice  on  the  one 
side,  and  the  hopelessness  of  saving  the  sacrificed  property  on  the 
other.  Emerigon  says,  chap.  xii.  s.  29,  "It  is  not  enough  that  a  jettison 
has  been  made;  that  measure  must  have  been  forced  on  those  resort- 
ing to  it  by  the  fear  of  perishing,  and  a  panic  terror  will  not  excuse 
the  captain  who  has  had  recourse  to  jettison,  without  being  forced  to 
it  by  real  danger.*'  On  the  other  hand,  in  a  case  in  the  American 
courts  (Crockett  v.  Dodge,  .3  Fair.  190),  a  vessel  laden  with  lime  was 
hauled  out  into  the  stream  and  scuttled  because  the  lime  was  on  fire. 
The  lime  was  destroyed  at  once,  and  the  ship  was  saved,  but  it  was  held 
that  the  ship  did  not  contribute  for  the  lime,  because  the  lime  could 
not  possibly  be  preserved,  and  the  ship  was  saved  by  only  hastening 
its  destruction.  It  has  been  decided  in  America  in  the  case  of  Nelson 
V.  Belmont.  5  Deuer,  310,  and  in  the  case  of  Nimick  v.  Holmes. 
25  Pennsylv.  3G(),  that  where  a  cargo  is  on  fire,  and  water  is  poured 
down  to  extinguish  the  fire,  and  goods  are  thereby  injured  which  the 
fire  had'  not  reached,  they  are  to  be  contributed  for.  Lowrie,  J.,  in 
the  latter  case,  said,  the  danger  is  a  common  one,  and  the  cost  of  the 
remedy  must  be  common.  It  was  a  sacrifice  for  the  common  safety, 
for  it  was  intentionally  injuring  or  destroying  all  that  part  of  the 
cargo  that  could  be  thus  affected  by  water  in  order  to  save  the  rest. 
In  the  case  of  Stewart  v.  West  India  and  Pacific  Steamship  Company 
(sup.)  in  187'3,  in  which  a  quantity  of  bark  had  been  injured  by 
pouring  water  down  the  holrl  to  extinguish  an  accidental  fii*e,  Cock- 
BURX,  C.J.,  and  Mellor  and  Quain,  J.J.,  expressed  their  opinion  that, 
according  to  the  common  law,  the  case  was  one  of  general  average, 
but  the  parties  having  agreed  that  average  was  to  be  adjusted  accord- 


246  RALLI  V.    TROOP.  [BOOK  II. 

ing  to  British  customs,  and  the  case  finding  that  it  was  the  custom  at 
Lloyd's  not  to  treat  such  a  loss  as  one  of  general  average,  the  decision 
was  necessarily  against  the  claim.  However,  in  a  subsequent  case  in 
the  year  1878  (Achard  v.  King,  31  L.  T.  Eep.  N.  S.  647),  the  existence 
of  this  custom  was  challenged,  and,  upon  a  trial  before  a  special  jury 
in  London,  the  custom  was  negatived,  and  the  principle  of  the  com- 
mon law  and  of  the  maritime  law,  as  recognized  by  all  commercial 
nations,  was  applied  to  the  case,  and  the  plaintiffs  recovered  a  contri- 
bution in  general  average  for  damage  done  to  their  goods  by  the 
scuttling  of  the  ship  to  extinguish  a  fire;  and  since  that  time  this 
custom  and  practice  has  been  discontinued  and  finally  abandoned  at 
Lloyd's.  The  still  more  recent  case  of  Attwood  v.  Sellar,  41  L.  T. 
Rep.  N.  S.  83 ;  4  Q.  B.  Div.  343,  dealt  a  further  blow  to  the  supposed 
British  customs  and  usages  which  were  said  to  differ  and  distinguish 
the  law  of  general  average  in  England  from  that  universally  accepted ; 
and  it  may  now  be  considered  as  fairly  established  that  this  important 
branch  of  our  commercial  law  is  governed  by  the  principles  of  the 
common  law  of  England,  embracing  within  it  the  principles  of  the 
general  maritime  law.  Applying  these  principles  to  the  facts  of  this 
case,  I  find  that  the  ship  and  the  whole  adventure  were  in  imminent 
danger  of  destruction  from  the  fire  which  had  broken  out  in  one  part 
of  the  cargo  of  coals ;  that  it  was  prudent  and  necessary  to  throw  over 
a  portion  of  the  coals  to  get  at  the  seat  of  the  fire,  and  to  pour  down 
water,  both  upon  the  burning  coals  and  also  upon  all  the  rest  of  the 
coals,  including  those  that  were  distant  from  the  fire,  as  well  as  those 
adjoining  it,  for  the  purpose  of  arresting  and  extinguishing  the  fire 
and  saving  the  ship  and  cargo;  and  also  that  all  the  operations  were 
prudent  and  necessary  with  the  same  view,  and  that  the  water  was 
poured  down  with  this  purpose  and  intention,  and  that  the  operation 
was  successful  in  saving  the  ship  and  a  very  large  portion  of  the  cargo ; 
and,  further,  that  the  operation  involved  a  voluntary  sacrifice  for  the 
benefit  and  safety  of  the  adventure  of  a  certain  portion  of  the  freight, 
viz.,  so  much  as  related  to  cargo  damaged  by  water,  and  not  within 
the  immediate  reach  of  the  fire,  and  which  was  too  much  damaged  by 
water  to  be  forwarded  to  its  destination  so  as  to  earn  freight.  These 
conclusions,  upon  the  principles  above  stated,  establish  the  claim  of 
the  owners  of  the  freight  to  a  contribution  in  general  average  from  the 
owners  of  the  other  interests,  and  entitle  the  defendants  to  judgment. 


In  Ralli  v.  Troop   (1894)    157  U.  S.  386,  393-397,^  Mr.  Justice 
Gray,  speaking  for  the  court,  said : 

The  law   of   general   average,   coming   down   to  us   from   remote 

'For  a  learned  criticism  of  this  case,  see  an  article  on  General  Average, 
by  the  late  Judge  Lowell,  in  9  Harv.  Law.  Rev.  185-197. — Ed. 


CHAP.    I.]  RALLI    V.    TROOP.  247 

antiquity,  is  derived  from  the  law  of  Rhodes,  through  the  law  of 
Konie,  and  is  part  of  the  maritime  law,  or  law  of  the  sea,  as  dis- 
tinguished from  the  municipal  law,  or  law  of  the  land. 

The  typical  case  is  that  mentioned  in  the  Ehodian  law  preserved 
in  the  Pandects  of  Justinian,  by  which,  if  a  jettison  of  goods  is  made 
in  order  to  lighten  a  ship,  what  is  given  for  the  benefit  of  all  is  to  be 
made  good  by  the  contribution  of  all.  Cavetur  ut,  si  levandce  navis 
gratia  jactus  mercium  factus  est,  omnium  contributione  sarciatur, 
quod  pro  omnibus  datum  est.    Dig.  14,  2,  1,  1. 

Another  case  of  general  average,  put  in  the  Pandects,  and  the  only 
one,  beside  jettison,  mentioned  in  the  Judgments  of  Oleron,  or  in  the 
Laws  of  Wisby,  is  the  cutting  away  of  a  mast  to  save  ship  and  cargo. 
Dig.  14,  2,  1,  4;  Oleron,  arts.  8,  9;  Wisby,  arts.  7,  11,  14. 

The  distinction  between  voluntary  and  compulsory  sacrifice  is  well 
illustrated  by  another  case  stated  in  the  Pandects,  recognized  in  the 
earliest  English  case  on  general  average,  and  approved  in  all  the  books, 
in  which  money  voluntarily  paid  by  the  master  to  ransom  the  ship 
and  cargo  from  pirates  is  to  be  contributed  for ;  but  not  so,  as  to  goods 
or  money  forcibly  taken  by  pirates.  Dig.  14,  2,  1,  5;  Hicks  v.  Paling- 
ton  (32'Eliz.)  Moore,  297. 

In  the  courts  of  England  and  America,  general  average  has  not 
been  restricted  to  the  cases  put  by  way  of  illustration  in  the  Rhodian 
and  Roman  laws;  but  it  has  never  been  extended  beyond  the  spirit 
and  principle  of  those  laws. 

In  the  earliest  case  in  this  court,  Mr.  Justice  Story,  in  delivering 
judgment,  stated  the  leading  limitations  and  conditions,  as  recognized 
by  all  maritime  nations,  to  justify  a  general  contribution,  as  follows: 
"First,  that  the  ship  and  cargo  should  be  placed  in  a  common  immi- 
nent peril;  secondly,  that  there  should  be  a  voluntary  sacrifice  of 
property  to  avert  that  peril ;  and,  thirdly,  that  by  that  sacrifice  the 
safety  of  the  other  property  should  be  presently  and  successfully 
attained."    Columbian  Ins.  Co.  v.  Ashby,  13  Pet.  331,  338. 

In  the  next  case  which  came  before  this  court,  Mr.  Justice  Crier, 
in  delivering  judgment,  defined  these  requisites,  somewhat  more  fully, 
as  follows :  "In  order  to  constitute  a  case  of  general  average,  three 
things  must  concur:  1st.  A  common  danger,  a  danger  in  which  sliip, 
cargo  and  crew  all  participate ;  a  danger  imminent  and  apparently 
'inevitable,'  except  by  voluntarily  incurring  the  loss  of  a  portion  of  the 
whole  to  save  the  remainder.  2d.  There  must  be  a  voluntary  jettison, 
jactus,  or  casting  away  of  some  portion  of  the  joint  concern  for  the 
purpose  of  avoiding  this  imminent  peril,  periculi  iinniinentis  evitandi 
causa,  or,  in  other  words,  a  transfer  of  the  peril  from  the  whole  to  a 
particular  portion  of  the  whole.  3d.  This  attempt  to  avoid  the 
imminent  peril  must  be  successful."  Barnard  v.  Adams,  10  How. 
270,  303.       » 

There  has  been  much  discussion  in  the  books  as  to  whether  the  right 


24:8  EALLI   V.   TROOP,  [bOOK   II. 

to  a  general  average  contribution  rests  upon  natural  justice,  or  upon 
an  implied  contract,  or  upon  a  rule  of  the  maritime  law,  known  to  and 
binding  upon  all  owners  of  ships  and  cargoes.  But  the  difference  has 
been  rather  as  to  forms  of  expression,  than  as  to  substantial  principles 
or  legal  results. 

Mr.  Justice  Clifford,  speaking  for  this  court,  stated,  in  several 
cases,  as  the  basis  of  general  average,  that  natural  justice  requires 
that  where  two  or  more  parties  are  engaged  in  a  common  sea  risk,  and 
one  of  them,  in  a  moment  of  imminent  peril,  makes  a  sacrifice  to 
avoid  the  impending  danger,  or  incurs  extraordinary  expenses  to  pro- 
mote the  general  safety  of  the  associated  interests,  the  loss  or  expenses 
so  incurred  shall  be  assessed  upon  all  in  proportion  to  the  share  of 
each  in  the  adventure.  McAndrews  v.  Thatcher,  3  Wall.  348,  366; 
The  Star  of  Hope,  9  Wall.  203,  228 ;  Fowler  v.  Eathbones,  12  Wall. 
102,  114;  Hobson  v.  Lord,  92  U.  S.  397,  404.  That  the  doctrine 
applies  only  where  something,  which  is  part  of  the  common  adventure, 
is  sacrificed  solely  for  the  benefit  of  the  rest  of  the  adventure,  is 
apparent  in  those  cases.  In  McAndrews  v.  Thatcher,  it  was  held  that 
there  could  be  no  contribution  for  expenses  incurred  after  the  master 
had  abandoned  the  stranded  ship,  and  had  left  her  in  charge  of  the 
agent  of  her  underwriters ;  because,  as  the  court  said :  "Complete  sepa- 
ration had  taken  place  between  the  cargo  and  the  ship;  and  the  ship 
was  no  longer  bound  to  the  cargo,  nor  t]ie  cargo  to  the  ship.  Undoubt- 
edly the  doctrine  of  general  average  contribution  is  deeply  founded 
in  the  principles  of  equity  and  natural  justice;  but  it  is  not  believed 
that  any  decided  case  can  be  found,  where  the  lia])ility  to  such  contri- 
bution has  been  pushed  to  such  an  extent  as  that  assumed  by  the 
plaintiffs."  3  Wall.  372.  In  The  Star  of  Hope,  and  in  Fowler  v. 
Rathbones,  the  general  average  allowed  was  for  the  loss  of  the  vessel 
by  stranding  by  the  voluntary  act  of  the  master.  See  Emery  v. 
Huntington,  109  Mass.  431,  436.  And  in  Hobson  v.  Lord,  the  con- 
tribution allowed  was  for  wages  and  provisions  of  the  crew  while 
assisting  in  repairing  the  injuries  suffered  by  the  vessel  from  such  a 
stranding. 

In  Wright  v.  Marwood,  in  which  it  was  held  by  the  English  Court 
of  Appeal  that  a  jettison,  by  the  master,  of  cattle  carried  on  deck, 
though  proper  and  necessary  for  the  safety  of  the  ship,  did  not  give 
a  right  to  general  average,  Lord  Justice  Bramwell  said:  "It  is  not 
necessary  to  say  what  is  the  origin  or  principle  of  the  rule;  but,  to 
judge  from  the  way  it  is  claimed  in  England,  it  would  seem  to  arise 
from  an  implied  contract  inter  se  to  contribute  'by  those  interested.'  " 
The  judgment,  however,  was  put  upon  tlie  ground  that,  whethor  the 
rule  was  treated  as  arising  from  impliivl  contract,  or  as  a  matter  of 
positive  law,  it  was  subject  to  an  exception  in  the  case  of  goods  loaded 
on  deck,  unless  a  deck  cargo  was  customary.     7  Q.  B.  D.  62,  67. 

In  Burton  v.  English,  in  the  same  court,  in  which  the  charter- 


CHAP.   I.]  RALLI   V.   TROOP.  249 

party  stipulated  that  the  ship  should  be  "provided  with  a  deck  load, 
if  required,  at  full  freight,  but  at  merchant's  risk,"  and  the  last 
words  were  held  not  to  exclude  the  right  to  a  general  average  con- 
tribution for  a  necessary  jettison  of  timber  carried  on  deck,  Lord 
Justice  Brett  (since  Ijord  Esiier,  Master  of  the  KoUs),  in  answering 
the  question,  "By  what  law  does  the  right  arise  to  general  average 
contribution?"  said:  "I  do  not  think  that  it  forms  any  part  of  the 
contract  to  carry;  and  that  it  does  not  arise  from  any  contract  at  all, 
but  from  the  old  Rhodian  laws,  and  has  become  incorporated  into  the 
law  of  England  as  the  law  of  the  ocean.  It  is  not  as  a  matter  of  con- 
tract, but  in  consequence  of  a  common  danger,  where  natural  justice 
requires  that  all  should  contrilnite  to  indemnify  for  the  loss  of  prop- 
erty which  is  sacrificed  by  one  in  order  that  the  whole  adventure  may 
be  saved.  If  this  be  so,  the  liability  to  contribute  does  not  arise  out 
of  any  contract  at  all,  and  is  not  covered  by  the  stipulation  in  the 
charter-party  on  which  the  defendants  rely."  12  Q.  B.  D.  218, 
220,  221. 

In  the  same  case.  Lord  Justice  Bowex,  with  characteristic  clearness 
and  felicity  of  expression,  said  of  the  same  question :  "In  the  investi- 
gation of  legal  principles,  the  question  whether  they  arise  by  way  of 
implied  contract  or  not  often  ends  by  being  a  mere  question  of  words. 
General  average  contril)ution  is  a  principle  which  comes  down  to  us 
from  an  anterior  period  of  our  history,  and  from  the  law  of  commerce 
and  the  sea.  When,  however,  it  is  once  established  as  part  of  the  law, 
and  as  a  portion  of  the  risks  which  those  who  embark  their  property 
upon  ships  are  willing  to  take,  you  may,  if  you  like,  imagine  that  those 
who  place  their  property  on  board  a  ship  on  the  one  side,  and  the 
shipowner  who  puts  his  ship  by  the  quay  to  receive  the  cargo  on  the 
other  side,  bind  themselves  by  an  implied  contract  which  embodies 
this  principle,  just  as  it  may  l)e  said  that  those  who  contract  with 
reference  to  a  custom  impliedly  make  it  a  portion  of  the  contract.  But 
that  way,  although  legally  it  may  be  a  sound  way,  nevertheless  is  a 
technical  way  of  looking  at  it.  This  claim  for  average  contribution, 
at  all  events,  is  part  of  the  law  of  the  sea,  and  it  certainly  arises  in 
consequence  of  an  act  done  by  the  captain  as  agent,  not  for  the 
shipowner  alone,  but  also  for  the  cargo  owner,  by  which  act  he  jetti- 
sons part  of  the  cargo  on  the  implied  basis  that  contribution  will  be 
made  by  the  ship  and  by  the  other  owners  of  cargo.  He  makes  the 
sacrifice  on  behalf  of  one  principal,  whose  agent  of  necessity  he  is, 
on  the  implied  terms,  if  you  like  to  call  it  so,  that  that  principal  siiall 
be  indemnified  afterwards  by  the  rest."    12  Q.  B.  D.  22;i. 

As  the  right  to  general  average  may  be  considered  as  resting  not 
merely  on  implied  contract  between  the  parties  to  the  common 
adventure,  but  rather  on  the  estiililished  law  of  the  sea.  in  the  light 
of  and  subject  to  which  nil  owners  of  ships  and  cargoes  undertake 
maritime  adventures,  so  the  authoritv  of  the  master  mav  be  treated 


250  SCOTT  V.   STEPHENSON.  [bOOK   II. 

as  resting  either  on  implied  contract  of  the  parties,  or  on  the  duty 
imposed  upon  him  by  the  law,  as  incident  to  his  station  and  office,  to 
meet  the  necessity  created  by  an  emergency  which  could  not  be  fore- 
seen or  provided  for,  and  to  prevent  the  property  in  his  custody  and 
control  from  being  left  without  protection  and  care. 


FORD  V.  STOBRIDGE. 

In"  Chancery,  before  Lord  Coventry,  1633. 

[Nelson,  Chancery,  24.] 

The  plaintiff  was  bound  as  surety  for  the  defendant,  and  the  debt 
was  recovered  against  him,  and  he,  having  no  counter-bond,  brought 
his  bill  to  recover  the  debt  and  damage  against  the  defendant,  which 
was  decreed  accordingly.     Quod  nota} 


SCOTT  V.  STEPHENSON". 

Michaelmas.    King's  Bench,  1663. 

[1  Levinz,  71.2] 

Assumpsit,  that  whereas  Sanders  was  indebted  to  divers  persons, 
and  the  plaintiff  obliged  for  him,  and  forced  to  pay  them;  the  de- 
fendant being  Sanders's  executor,  in  consideration  the  plaintiff  would 
forbear  to  sue  him  for  the  money,  promised  to  pay  him.  After  a 
verdict  for  the  plaintiff*  on  the  issue  non  assumpsit,  it  was  moved  in 
arrest  of  Judgment,  that  here  was  no  consideration;  for  it  does  not 
appear  that  Sanders  had  promised  or  was  obliged  to  save  him  harm- 
less; and  Borden  and  Thyn's  case  in  Yelverton,  40,  and  Smith  and 
John's  case,  Owen,  132,  were  cited.  But  by  the  court  there  was 
equity,  that  Sanders  should  save  the  plaintiff  harmless,  and  a  suit 
in  equity  is  a  suit,  or  perhaps  he  might  be  charged  by  (a  writ)  de 
plegiis  acquietandis,  and  therefore  they  held  the  consideration  good, 
and  gave  judgment  for  the  plaintiff,  except  cause  (shown  to  the 
contrary)  on  Monday  next,  &c. 

'The  editor  has  not  eared  to  glean  stubble  after  Mr.  Ames'  rich  harvest  in 
the  field  of  suretyship.  Therefore,  the  cases  involving  the  obligation  in  surety- 
ship, as  well  as  the  notes  thereto,  are  taken  mostly  from  his  collection. 

As  in  the  case  of  general  average,  no  attempt  has  been  made  to  exhaust 
the  subject  or,  indeed,  to  develop  it.  The  cases  are  chosen  solely  to  show  the 
quasi-contractual  nature  of  the  obligation. — Ed. 

'Likewise  reported  in  1  Sid.  89,  1  Keb.  34G.— Ed. 


CHAP.   I.]  DECKER    V.    POPE.  251 

LAYER  V.  NELSON. 

In  Chancery,  before  Lord  Jeffreys,  1687. 

[1  Vernon,  456.] 

Where  one  obligee  that  is  a  surety  is  sued  alone,  by  the  custom  of 
the  city  of  London  he  shall  make  his  co-sureties  contribute :  so  where 
a  surety  pays  a  debt,  and  has  no  counter-bond,  by  the  custom  of  the 
city  of  London  he  shall  maintain  an  action  against  the  principal. 


DECKER  V.  POPE. 

Nisi  Prius,  before  Lord  Mansfield,  C.  J.,  1757. 

[1  Selwijn,  Nisi  Prius  {ISth  ed.),  91.] 

This  was  an  action  brought  by  an  administrator  de  bonis  non  of  a 
surety,  who,  at  defendant's  request,  had  joined  with  another  friend  of 
defendant's  in  giving  a  bond  for  the  payment  of  the  price  of  some 
goods  that  were  sold  to  defendant ;  and  the  surety  having  been  obliged 
to  pay  the  money,  the  administrator  declared  against  the  defendant 
for  so  much  money  paid  to  his  use. 

Lord  Mansfield  directed  the  jury  to  find  for  the  plaintiff ;  observ- 
ing, that  where  a  debtor  desires  another  person  to  be  bound  with  him 
or  for  him,  and  the  surety  is  afterwards  obliged  to  pay  the  debt,  this 
is  a  sufficient  consideration  to  raise  a  promise  in  law,  and  to  charge 
the  principal  in  an  action  for  money  paid  to  his  use.  He  added,  that 
he  had  conferred  with  most  of  the  judges  upon  it,  and  they  agreed  in 
that  opinion.^ 

'In  1821  Lord  Eldon  said:  "Until  I  became  acquainted  with  that  case 
[Toussaint  v.  Martinnant  (1787),  2  T.  R.  100],  I  thought  the  remedy  must  be 
in  equity."     Stirling  v.  Forrester,  3  Bligh,  ,575,  590. 

"if  the  surety,  at  the  time  of  entering  into  the  suretyship  obligation,  take  a 
eounterbond  of  indemnity  from  the  principal,  his  only  remedy  at  common  law 
is  upon  the  eounterbond.  The  express  contract  excludes  any  implied  promise  of 
indemnity.  Toussaint  v.  Martinnant  (1787)  2  T.  R.  100;  Roosevelt  i'.  Mark 
(1822)  6  Johns.  Ch.  26G.'^Ed. 


252  APPLETOX  V.    BASCOM.  [BOOK  II. 

APPLETOX  V.  BASCOM. 

Supreme  Judicial  Court,  Massachusetts,  1841. 

[3  Metcalf,  169.] 

This  was  an  action  of  debt  on  a  bond  for  the  liberty  of  the  prison 
limits,  and  was  submitted  to  the  court  on  the  following  facts :  Tim- 
othy Bascom,  one  of  the  defendants,  was  administrator  of  the  estate 
of  Clement  Bascom,  and  the  plaintiffs  were  his  sureties  on  his  admin- 
istration bond,  which  they  executed  with  him  on  the  3d  of  November, 
1835.  On  the  21st  of  April,  1840,  the  plaintiffs  jointly  paid  $230 
for  said  Timothy's  default,  which  they  were  bound  to  pay  by  reason 
of  having  been  his  sureties  on  said  bond. 

At  the  December  term,  1840,  of  the  Court  of  Common  Pleas,  the 
plaintiffs  recovered  judgment  against  said  Timothy,  in  an  action  for 
money  paid,  the  amount  which  they  had  paid,  as  aforesaid,  by  reason 
of  his  default.  In  that  action,  they  filed  a  specification  of  their  claim, 
setting  forth  that  they  demanded  $230  paid  by  them  on  account 
of  their  having  signed  a  bond  as  sureties  of  the  said  Timothy  as 
administrator  of  Clement  Bascom.  Execution  issued  on  said  judg- 
ment, and  said  Timothy  was  committed  to  the  jail  at  Lowell,  on  the 
23d  of  February,  1841,  and  on  the  same  day  he,  and  the  other  defend- 
ants, as  his  sureties,  executed  the  bond  on  which  the  present  action 
was  brought.  Immediately  after  the  execution  of  the  bond,  said 
Timothy  went  without  the  exterior  limits  of  the  city  of  Lowell, 
without  the  consent  of  the  plaintiffs,  and  without  being  discharged  by 
law.      He   afterward  took  the   poor   debtor's   oath.^ 

Wilde,  J.  This  is  an  action  of  debt  on  a  bond  given  for  the 
liberty  of  the  prison  limits,  and  the  question  is,  whether  the  principal 
in  the  bond,  after  the  giving  of  said  bond,  committed  an  escape  by 
going  without  the  prison  limits.  And  this  depends  on  ascertaining 
the  time  when  the  contract  was  made,  on  which  the  judgment  was 
recovered,  upon  which  the  execution  issued,  by  virtue  of  which  the 
said  principal  in  the  bond  was  committed  to  prison.  The  said  judg- 
ment was  recovered  in  an  action  for  money  paid  by  the  plaintiffs,  and 
which  they  were  obliged  to  pay,  for  said  jirincipal,  by  reason  of  his 
breach  of  the  condition  of  an  administration  bond,  which  they  had 
executed  as  his  sureties. 

The  action  was  founded  on  an  ini])lic'd  promise;  and  the  question 
is  reduced  to  this,  whether  the  promise  was  implied  by  law  at  the 

'The  arguments  of  counsel  are  omitted. — Ed. 


CHAP.    I.]  APPLETON    V.    BASCOM,  253 

time  when  the  plaintiffs  became  sureties,  or  not  until  they  paid  the 
money,  when  their  right  of  action  against  the  defendant  first  accrued. 
And  we  think  it  is  well  settled,  that  when  a  surety  becomes  bound  for 
his  principal  and  at  his  request,  the  law  implies  a  promise  of  indem- 
nity by  the  principal  to  the  surety  to  repay  the  latter  all  the  money  he 
may  be  compelled  to  pay  the  creditor  in  consequence  of  his  assumed 
liability.  So  the  law  is  laid  down  in  Wood  v.  Leland,  1  Met.  389 ; 
and  so  it  was  decided  in  Gibbs  v.  Bryant,  1  Pick.  121,  in  Toussaint  v. 
Martinnant,  2  T.  R.  104,  in  Howe  v.  Ward,  4  Greenl.  200,  and  in  many 
other  cases.  In  Gibbs  v.  Bryant  there  had  been  given  a  written 
promise  of  indemnity,  and  the  court  say  that  "the  written  contract 
produced  contained  nothing  more  than  what  the  law  would  imply." 
And  so  the  law  has  been  well  settled  for  a  long  time,  although  in 
ancient  times  no  action  at  law  could  be  maintained  where  a  surety 
had  paid  the  debt  of  his  principal ;  the  only  remedy  being  to  be  had 
in  a  court  of  equity.  But  very  many  equity  principles  have  been 
adopted  by  courts  of  law  in  modern  times,  allowing  actions  to  be 
maintained  on  implied  promises  by  the  party  to  do  what  justice 
and  equity  require  to  be  done,  where  there  is  no  express  contract. 
And  the  implied  promise  of  indemnity  in  the  present  case  must  be 
considered  as  made  at  the  time  when  the  plaintiffs  became  responsible 
to  the  creditor  on  the  bond.  The  plaintiffs'  liability  was  the  con- 
sidicration  of  the  principal's  implied  promise  of  indemnity,  and 
the  promise  must  be  considered  as  made  at  the  time  when  that 
liability  was  assumed.  And  the  plaintiffs,  when  they  paid  the  money, 
might  have  declared  on  said  implied  promise,  or  for  money  paid,  in 
common  form,  as  the  declaration  was.  The  time  of  making  the  con- 
tract is  not  to  be  determined  by  the  form  of  the  action. 

The  otlier  objection  made  by  the  defendants'  counsel  is,  that  the 
law  does  not  imply  a  promise  to  the  plaintiff  jointly ;  and  the  case 
of  Gould  V.  Gould,  8  Cow.  168,  seems  to  countenance  this  objection. 
But  a  more  reasonable  doctrine  is  maintained  in  other  cases.  Os- 
borne V.  Harper,  5  East,  225 ;  Pearson  r.  Parker,  3  X.  H.  366 ; 
Jewett  r.  Cornforth,  3  Greenl.  107.  According  to  the  decisions  in  these 
cases,  when  money  is  paid  by  two  or  more  sureties  jointly  for  the  prin- 
cipal, or  when  the  money  paid  is  raised  on  their  joint  credit,  their 
proper  remedy  for  reimbursement  is  a  joint  action;^  but  if  they 
pay  separately,  then  their  proper  remedy  is  by  separate  action,  and 

"'Accord:  Osborne  v.  Harper,  5  East,  225;  Dussol  v.  Brufrniere,  50  Cal.  450: 
Hull  V.  Myers,  90  Ga.  675.  GSO  {scnibic)  :  Jewett  r.  Cornforth.  3  Me.  107: 
Lombard  v.  Cobb,  14  Me.  222,  224  (ncnthlc)  :  Clapp  r.  Rice,  15  Gray,  557; 
Pearson  v.  Parker,  3  N.  H.  306;  Commonw.  r.  Cox,  30  Pa.  442. 

"Contra:  Kelby  v.  Steel,  5  Esp.  194;  Gould  v.  Gould,  8  Cow.  168. 

"But  one  who  pays  jointly  with  others  may  sue  alone  for  contribution  from 
a  on-surety  who  has  not  paid.  Hull  v.  Myers,  90  Ga.  675;  Atkinson  v.  Thayer, 
2  P..  :Mon."  348."— Ed. 


254  WORMLEIGHTON    V.    HUNTEE's    CASE.  [BOOK   II. 

a  Joint  action  cannot  be  maintained.^  In  either  case,  however,  the 
action,  whether  joint  or  several,  is  founded  on  the  promise  of  indem- 
nity expressly  or  impliedly  made  at  the  time  when  the  sureties  first 
became  bound.  When  a  promise  is  implied  by  law,  such  a  promise 
is  implied  as  will  give  to  the  party  who  may  suffer  damage  by  the 
breach  of  it  a  suitable  and  proper  remedy.  We  consider,  therefore, 
ihe  promise  of  Bascom,  to  indemnify  his  sureties,  as  made  to  them 
jointly  and  severally;  and  as  it  appears  that  they  paid  the  money, 
which  they  became  liable  to  pay,  jointly,  they  were  well  entitled  to  a 
joint  action  against  him  for  reimbursement. 

Judgment  for  the  plaintiffs.^ 


WORMLEIGHTON  v.  HUNTER'S  CASE. 

Common  Pleas,  1613 

[Godbolt,  243.] 

Two  men  are  bounden  with  J.  S.  as  sureties  in  an  obligation.  One 
of  the  sureties,  viz.  Wormleighton,  was  sued  upon  the  bond,  and  the 
whole  penalty  recovered  against  him.  He  exhibited  an  English  bill 
into  the  Court  of  Requests  against  the  defendant,  being  the  other 
surety,  to  have  contribution :  and  it  was  moved  to  the  Court  for  a 
prohibition  to  the  Court  of  Requests,  and  the  same  was  granted, 

•"Accord:  Graham  v.  Robertson,  2  T.  R.  282;  Brand  v.  Boulcott,  3  B.  &  P. 
235;  Lombard  v.  Cobb,  14  Me.  222;  Prescott  v.  Newell,  39  Vt.  82. 

"But  the  paying  sureties  may  join  as  plaintiffs  in  a  suit  in  equity  for  con- 
tribution against  those  who  have  not  paid.  Smith  v.  Rumsey,  33  Mich.  183; 
Young  V.  Lyons,  8  Gill,  162;  Fletcher  v.  Jackson,  23  Vt.  581."— Ed. 

*" Accord:  Rice  v.  Southgate,  16  Gray.  142;  Elwood  v.  Deifendorf,  5  Barb. 
398. 

"Similarly  a  surety  is  creditor  of  principal  within  Statute  of  Elizabeth  as 
to  conveyances  in  fravul  of  creditors  from  the  time  he  becomes  surety.  Keel  v, 
Larkin,  72  Ala.  493;  Bragg  v.  Patterson,  85  Ala.  233;  Choteau  v.  Jones, 
11  111.  300;  Hatfield  v.  Merod,  82  111.  113;  Sargent  v.  Salmond,  29  Me.  539; 
Williams  v.  Banks,  11  Md.  198,  242;  Pennington  v.  Seal,  49  Miss.  518,  525; 
Loughridge  v.  Bowland,  52  Miss.  546;  Carlisle  v.  Rich,  8  N.  H.  44  {semble). 
But  see  contra,  Williams  v.  Tipton,  5  Humph.  06. 

"So,  also,  if  a  testator  is  a  co-surety  wUh  one  of  his  legatees,  and  the  latter 
assigns  his  legacy  before  the  esiate  of  the  testator  pays  the  creditor,  the 
assignee  takes  subject  to  the  right  of  the  estate  to  reduce  the  legacy  by  tlie 
amount  due  from  the  legatee  by  way  of  contribution,  for  the  equity  to  make 
this  reduction  arose  contingently  when  the  relation  of  suretyship  was  assumed 
by  the  parties.     Baily's  Est.  156  Pa.  634." — Ed. 


CHAP.    I.]  DEERING    V.    WINCIIELSEA    AND    OTHERS.  256 

because  by  entering  into  the  obligation  it  became  the  debt  of  each  of 
them  jointly  and  severally,  and^  the  obligee  had  his  election  to  sue 
which  of  them  he  pleased  and  take  forth  execution  against  him:  and 
the  Court  said,  that  if, one  surety  should  have  contribution  against 
the  other,  it  would  be  a  great  cause  of  suits,  and  therefore  the  pro- 
hibition was  awarded;  and  so  it  was  said  it  was  lately  adjudged  and 
granted  in  the  like  case,  in  Sir  William  Whorwood's  case. 


FLEETWOOD  v.  CHARNOCK. 

In  Chancery^  before  Lord  Coventry,  1629. 

[Nelson,  10.^] 

The  plaintiff  and  defendant  were  jointly  bound  for  a  third  person, 
who  died  leaving  no  estate;  the  plaintiff  was  sued  and  paid  the  debt 
and  brought  his  bill  against  the  defendant  for  contribution,  who  was 
decreed  to  pay  his  proportionate  part.- 


SIR  E.  DEERING  v.  THE  EARL  OF  WINCHELSEA 
AND  OTHERS. 

In  the  Exchequer,  February  8,  1787, 

[3  Bosanquet  &  Puller,  270.^] 

Lord  Chief  Baron  Eyre  (present  Hotham  and  Perrin,  Barons) 
delivered  the  opinion  of  the  Court. 

Thomas  Decring,  younger  brother  of  the  plaintiff,  was  appointed 
in  1778  receiver  of  fines  and  forfeitures  of  the  customs  of  the  out- 
ports,  and  entered  into  three  bonds,  each  in  the  penalty  of  £4,000, 
with  condition  for  duly  accounting;  in  one  of  which  the  plaintiff 
joined  as  surety,  in  another  Lord  Wincholsea,  and  Sir  John  Rous  in 
the  third.  Thomas  Deering  became  insolvent  and  left  the  country ; 
the  balance  due  to  the  crown  was  £6,602  10s.  8d.,  part  of  which 
was  levied  on  his  effects,  and  when  the  bill  was  filed  there  was  du<^ 
£3,883  Us.  8^d.,  which  was  rather  less  tlian  the  penalty  of  each  of 
the  bonds.     The  bond  in  which  the  plaintiff  had  joined  was  put  in 

'Reported  also  in  Tothill.  41.— En. 

-"  'Parklnnst  r.  Biitlnirst.   Contribution  of  a  bond  in  Midi,  or  Hillar,  5  Car. 

;  Wilcox  V.  Lord  Dunsmore.    A  demurrer  put  in  upon  point  of  contribution 

overruled.    12   Car.'     Toth.   41.''— En. 

'Also  reported  in  1   Cox,  310. — Ed. 


2oG  DEERING    V.    WINCHELSEA    AND   OTHERS.  [BOOK    II. 

suit  against  him,  and  judgment  obtained.  He  filed  his  bill  demand- 
ing contribution  against  Lord  Winchelsea  and  Sir  John  Rous,  and 
praying  an  account  of  what  was  due  to  the  crown  and  money  levied  on 
the  plaintiff  (supposing  execution  to  follow  the  judgment),  and  that 
Lord  Winchelsea  and  Sir  John  Eous  might  contribute  to  discharge 
the  debt  of  Thomas  Deering  as  two  of  the  sureties  for  that  debt.  The 
appointment,  the  three  bonds,  and  the  judgment  against  the  plaintiff 
were  in  proof,  and  the  balances  were  admitted  by  all  parties. 

The  Lord  Chief  Baron,  after  stating  the  case,  observed,  that  con- 
tribution was  resisted  on  two  grounds :  first,  that  there  was  no  foun- 
dation for  the  demand  in  the  nature  of  the  contract  between  the 
parties,  the  counsel  for  the  defendants  considering  the  title  to  contri- 
bution as  arising  from  contract  expressed  or  implied;  secondly,  that 
the  conduct  of  Sir  Edward  Deering  had  deprived  him  of  the  bene- 
fit of  any  equity  which  he  might  have  otherwise  had  against  the 
defendants. 

The  Lord  Chief  Baron  considered  the  second  objection  first.  The 
misconduct  imputed  to  Sir  E.  Deering  was,  that  he  had  encouraged 
his  brother  in  irregularities,  and  particularly  in  gaming,  which  had 
ruined  him,  and  had  done  this  knowing  his  fortune  to  be  such  that  he 
could  not  support  himself  in  his  extravagances  and  faithfully  account 
to  the  crown ;  that  Sir  E.  Deering  was  privy  to  his  brother's  break- 
ing through  the  orders  given  him  to  deposit  the  money  he  received 
in  a  chest  under  the  key  of  the  comptroller.  His  Lordship  observed 
that  this  might  be  true,  and  certainly  put  Sir  E.  Deering  in  a  point  of 
view  which  made  his  demand  indecorous;  but  it  had  not  been  made 
out  to  the  satisfaction  of  the  Court  that  this  constituted  a  defence. 
Mr.  Maddocks  had  stated  that  the  author  of  the  loss  should  not  have 
contribution;  but  stated  neither  reason  nor  authority  to  support  the 
principle  he  urged.  If  these  were  circumstances  which  could  work 
a  disability  in  the  plaintiff  to  support  his  demand,  it  must  be  on  the 
maxim,  "that  a  man  must  come  into  a  court  of  equity  with  clean 
hands;"  but  general  depravity  is  not  sufficient.  It  must  be  pointed 
to  the  act  upon  which  the  loss  arises,  and  must  be  in  a  legal  sense 
the  cause  of  the  loss.  In  a  moral  sense  Sir  E.  Deering  might  be  the 
author  of  the  loss;  but  in  a  legal  sense  Thomas  Deering  was  the 
author;  and  if  the  evil  example  of  Sir  E.  Deering  led  him  to  it,  yet 
this  was  not  what  a  court  of  justice  could  take  cognizance  of.  There 
might  indeed  be  a  case  in  which  a  person  might  be  in  a  legal  sense 
the  author  of  the  loss,  and  therefore  not  entitled  to  contribution ;  as 
if  a  person  on  board  a  ship  was  to  bore  a  hole  in  the  ship,  and  in 
consequence  of  the  distress  occasioned  by  this  act  it  became  necessary 
to  throw  overboard  his  goods  to  save  the  ship.  This  head  of  defence 
therefore  fails.  The  real  point  is,  Whether  there  shall  be  contribu- 
tion by  sureties  in  distinct  obligations? 

It  is  admitted,  that  if  they  had  all  joined  in  one  bond  for  £12,000, 


CHAP.    I.]  DEERING    V.    WINCHELSEA    AND   OTHERS.  257 

there  must  have  been  contribution.  But  this  is  said  to  be  on  the 
foundation  of  contract  implied  from  their  being  parties  in  the  same 
engagement,  and  here  the  parties  might  be  strangers  to  each  other. 
And  it  was  stated  that  no  man  could  be  called  upon  to  contribute 
who  is  not  a  surety  on  the  face  of  the  bond  to  which  he  is  called  to 
contribute.  The  point  remains  to  be  proved  that  contribution  is 
founded  on  contract.  If  a  view  is  taken  of  the  cases,  it  will  appear 
that  the  bottom  of  contribution  is  a  fixed  principle  of  justice,  and  is 
not  founded  in  contract.  Contract  indeed  may  qualify  it,  as  in  Swain 
V.  Wall,  where  three  were  bound  for  H.  in  an  obligation,  and  agreed, 
if  H.  failed,  to  bear  their  respective  parts.  Two  proved  insolvent, 
the  third  paid  the  money,  and  one  of  the  others  becoming  solvent,  he 
was  compelled  to  pay  a  third  only. 

There  are  in  the  Register,  fo.  176  b,  two  writs  of  contribution, 
one,  "De  contrihutione  facienda  inter  cohceredes,"  the  other,  "De 
feoffamentoj"  these  are  founded  on  the  Statute  of  Marlebridge,  52  H. 
III.,  c.  9,  which  enacts,  "That  if  any  inheritance  whereof  but  one  suit 
is  due  descends  unto  many  heirs  as  unto  parceners,  whoso  hath  the 
eldest  part  of  the  inheritance,  shall  do  that  one  suit  for  himself  and 
fellows,  and  the  other  co-heirs  shall  be  contributaries  according  to 
their  portion  for  doing  such  suit.  And  if  many  feoffees  be  seised 
of  an  inheritance  whereof  but  one  suit  is  due,  the  lord  of  the  fee 
shall  have  but  that  one  suit,  and  shall  not  exact  of  the  said  inheri- 
tance but  that  one  suit,  as  has  been  used  to  be  done  before.  And  if 
these  feoffees  have  no  warrant  or  means  which  ought  to  acquit  them, 
then  all  the  feoffees  according  to  their  portion  shall  be  contributaries 
for  doing  the  suit  for  them."  The  object  of  the  statute  was  to  protect 
the  inheritance  for  more  than  one  suit.  The  provision  for  contribu- 
tion was  an  application  of  a  principle  of  justice.  In  Fitzh.  X.  B. 
163  B,  there  is  a  writ  of  contribution  where  there  are  tenants  in 
common  of  a  mill  and  one  of  them  will  not  repair  the  mill,  the  other 
shall  have  the  writ  to  compel  him  to  contribute  to  the  repair.  In 
the  same  page  Fitzherbert  takes  notice  of  the  writs  of  contribution 
between  co-heirs  and  co-feoffees;  and  supposes  that  between  feoffees 
the  writ  cannot  be  had  without  the  agreement  of  all,  and  the  writ  in 
the  register  countenances  the  idea ;  yet  this  seems  contrary  to  the 
express  provision  in  the  statute.  In  Sir  Wm.  Harbet's  Case,  3  Co. 
lib,  many  cases  are  put  of  contribution  at  common  law.  The  reason 
is.  they  are  all  in  a'quali  jure,  and  as  the  law  requires  equality  they 
shall  equally  bear  the  burden.  This  is  considered  as  founded  in  equity ; 
contract  is  not  mentioned.  The  principle  operates  more  clearly  in  a 
court  of  equity  than  at  law.  At  law  the  party  is  driven  to  an 
audita  querela  or  scire  facias  to  defeat  the  execution  and  compel 
execution  to  be  taken  against  all.  There  are  more  cases  of  contri- 
bution in  equity  than  at  law.  Tu  Equity  Cases  Abridged  there  is  a 
string;  under  the  title  "Contribution  and  Average."    Another  case  at 


258  DEEHING    V.    WIXCIIELSEA    AND   OTHERS.  [BOOZ  II. 

law  occurred  in  looking  into  Hargrave's  Tracts  in  a  treatise  ascribed 
to  Lord  Hale  on  the  prisage  of  wines.  The  king's  title  is  to  one  ton 
before  the  mast  and  one  ton  behind  the  mast.  If  there  are  different 
owners  they  may  be  compelled  in  the  Exchequer  Chamber  to  con- 
tribute. Contribution  was  considered  as  following  the  accident  on  a 
general  principle  of  equity  in  the  court  in  which  we  are  now  sitting. 

In  the  particular  case  of  sureties,  it  is  admitted  that  one  surety 
may  compel  another  to  contribute  to  the  debt  for  which  they  are 
jointly  bound.  On  what  principle?  Can  it  be  because  they  are 
jointly  bound?  What  if  they  are  jointly  and  severally  bound?  What 
if  severally  bound  by  the  same  or  different  instruments?  In  every 
one  of  those  cases  sureties  have  a  common  interest  and  a  common 
burthen.  They  are  bound  as  effectually  quoad  contribution,  as  if 
bound  in  one  instrument,  with  this  difference  only,  that  the  sums 
in  each  instrument  ascertain  the  proportions,  whereas  if  they 
were  all  joined  in  the  same  engagement  they  must  all  contribute 
equally. 

In  this  case  Sir  E.  Deering,  Lord  Winchelsea,  and  Sir  J.  Rous 
were  all  bound  that  Thomas  Deering  should  account.  At  law  all  the 
bonds  are  forfeited.  The  balance  due  might  have  been  so  large  as  to 
take  in  all  the  bonds;  but  here  the  balance  happens  to  be  less  than 
the  penalty  of  one.  Which  ought  to  pay?  He  on  whom  the  crown 
calls  must  pay  to  the  crown ;  but  as  between  themselves  they  are- 
in  cpquali  jure,  and  shall  contribute.  This  principle  is  carried  a 
great  way  in  the  case  of  three  or  more  sureties  in  a  joint  obligation; 
one  being  insolvent,  the  third  is  obliged  to  contribute  full  moiety. 
This  circumstance  and  the  possibility  of  being  made  liable  to  the 
whole  has  probably  produced  several  bonds.  But  this  does  not  touch 
the  principle  of  contribution  where  all  are  bound  as  sureties  for  the 
same  person. 

There  is  an  instance  in  the  civil  law  of  average,  where  part  of  a 
cargo  is  thrown  overboard  to  save  the  vessel.  Show.  Pari.  Cas.  19 
Moor,  297.  The  maxim  applied  is  qui  sentit  commodum  sentire  debet 
et  onus.  In  the  case  of  average  there  is  no  contract  express  or  implied, 
nor  any  privity  in  an  ordinary  sense.  This  shows  that  contribution 
is  founded  on  equality,  and  established  by  the  law  of  all  nations. 

There  is  no  difficulty  in  ascertaining  the  proportions  in  which  the 
parties  ought  to  contribute.  The  penalties  of  the  bonds  ascertain 
the  proportions. 

The  decree  pronounced  was,  that  it  being  admitted  by  the  Attorney- 
General  and  all  parties  that  the  balance  due  was  £3,88i3  14s.  Bid.,  the 
plaintiff  Sir  E.  Deering,  and  the  defendants  the  Earl  of  Winchelsea 
and  Sir  J.  Rous,  ought  to  contribute  in  equal  shares  to  the  payment 
thereof,  and  that  they  do  accordingly  pay  each  £1,204:  lis.  Gjd.,  and 
on  payment  the  Attorney-General  to  acknowledge  satisfaction  on  the 
record  of  the  judgment  against  the  plaintiff,  and   the   two   bonds 


CHAP.    I.]  BACIIKLDER    V.    FISK    AND   ANOTHER,    EX'RS.  2o9 

entered  into  by  the  Earl  of  Winchelsea  and  Sir  J.  Rous  to  be  deliv- 
ered up. 

This  being  a  case  which  the  Court  considered  as  not  favorable  to 
Sir  E.  Deering  and  a  case  of  difficulty,  they  did  not  think  fit  to  give 
him  costs.^ 


BACHELDER  v.  FISK  AND  ANOTHER,  EXECUTORS 

Supreme  Judicial  Court  of  Massachusetts,  1821. 

[17  Massachusetts,  464.] 

The  action  was  commenced  on  the  30th  of  August  1820,  and  was 
submitted  to  the  decision  of  the  court  upon  an  agreed  statement  of 
facts,  to  the  following  purport. — Ebenezer  Fiske,  one  of  the  defend- 
ants, was  duly  appointed  guardian,  as  alleged  in  the  declaration,  on 
the  4th  of  October  1813.  The  plaintiff  and  the  testator  then  gave 
bond  to  the  judge  of  probate  for  this  county  in  the  penalty  of  10,000 
dollars,  as  sureties  for  the  said  Ebenezer's  performance  of  his  said 
trust.  In  June  1820  the  said  Elhridge  came  of  age,  and  demanded 
of  the  said  guardian  an  account  of  his  trust.  The  guardian  was 
insolvent,  and  the  ward  then  required  the  plaintiff  to  pay  him  4197 
dollars  71  cents,  then  remaining  due  to  him  from  the  guardian ;  which 
sum  the  plaintiff,  on  the  25th  of  August  1820,  paid  to  the  ward,  in 
pursuance  of  the  said  bond. 

The  said  guardian  made  an  assignment  of  certain  property  to  the 
plaintiff,  for  the  purpose  of  indemnifying  him  against  his  liability  as 
surety  in  the  said  bond. 

"'Whiting  V.  Burke,  6  Ch.  342,  10  Eq.  539;  In  re  Ennis  (1893)  3  Ch.  238; 
Dugger  V.  Wright,  51  Ark.  232;  Powell  v.  Powell,  48  Cal.  234;  Monson  v. 
Drakeley,  40  Conn.  552;  Stevens  v.  Tucker,  87  Ind.  109;  Hutchcraft  v.  Shrout, 
1  T.  B.  Mon.  208;  Breckenridge  v.  Taylor,  5  Dana,  110;  Bosley  v.  Taylor, 
5  Dana,  157;  Cobb  v.  Harries,  8  B.  Mon.  137;  Stockmeyer  r.  Oertling,  35  La. 
An.  468;  Chaffee  v.  Jones,  19  Pick.  260;  Craig  v.  Ankeney,  4  Gill.  225;  Loring 
V.  Bacon,  3  Cush.  465;  Brooks  v.  Whitmore,  142  Mass.  399;  Forbes  v.  Har- 
rington, 171  Mass.  386;  Young  v.  Shunk,  30  ^linn.  503;  Wood  r.  Williams, 
61  Mo.  63;  Norton  v.  Coons,  3  Den.  130;  Aspinwall  r.  Torrance,  57  N.  Y.  331; 
Armitage  v.  Pulver,  37  N.  Y^  494;  Schram  v.  Werner,  85  Hun,  293;  Oats  r. 
Bryan,  3  Dev.  451 ;  Bell  v.  Jasper.  2  Ired.  Eq.  597 ;  Jones  v.  Hayes,  3  Ired. 
Eq.  502;  Jones  v.  Blanton,  6  Irod.  Eq.  115;  Moore  v.  Boudinot,  64  N.  Ca.  190; 
Cherry  r.  Ross,  78  N.  Ca.  164;  Hi:ghes  r.  Boone,  81  X.  Ca.  204;  Pickens  r. 
Miller,  83  N.  Ca.  543;  Robinson  v.  Boyd,  00  Oh.  St.  57;  Durbin  r.  Kuney, 
19  Oreg.  71;  Thompson  r.  Dekum,  32  Oreg.  506;  Commw.  r.  Cox.  36  Pa.  442; 
Harris  v.  Ferguson,  2  Bail.  397;  Enicks  v.  Powell,  2  Strob.  Eq.  106:  Odom  r. 
Owens,  2  Ba.\t.  446." 

And  see  the  elaborate  note  on  this  case  in  2  White  &  Tudor 's  Equity  Cases 
(7th  ed.)  540,  ct  scq.—Ev. 


260  BACIIELDER    V.    FISK    AXD    ANOTHER,    EX'rS.  [bOOK    II. 

The  defendant's  testator  died  on  the  9th  of  April  1815,  leaving 
real  and  personal  estate  appraised  at  3965  dollars. 

The  plaintiff  set  out  these  facts  in  a  special  count,  and  also  filed 
the  common  money  counts  pro  forma. 

If,  upon  the  facts  stated,  the  court  should  be  of  opinion  that  the 
plaintiff  was  entitled  to  recover  in  this  action  the  amount  of  damages 
was  to  be  assessed  by  a  jury;  if  otherwise,  the  defendants  were  to 
recover  costs.^ 

Jackson  J.  delivered  the  opinion  of  the  court. 

As  to  the  main  question  in  this  case,  it  has  been  long  settled  in 
our  courts  that  a  surety,  who  has  paid  the  debt  of  the  principal,  may 
have  an  action  for  contribution  against  his  co-surety :  and  the  common 
form  of  the  action  here,  as  well  as  in  the  E7iglish  courts,  has  been 
indebitatus  assumpsit  for  money  paid  by  the  plaintiff  for  the  use 
of  the  defendant,  8  B.  &  P.  268,  Cowell,  adm.  v.  Edwards.  It  is  true 
that,  in  the  case  of  Deering  v.  The  Earl  of  Winchelsea  &  al.  2  B.  &  P. 
270,  it  is  said  that  this  right  of  contribution  is  not  founded  on 
contract,  but  on  "a  fixed  principle  of  justice ;"  and  it  is  likened  to  the 
case  of  contribution  to  a  general  average,  when  part  of  a  cargo  is 
thrown  overboard  at  sea  to  save  the  residue;  in  which  case  it  is  said, 
"there  is  no  contract  express  or  implied,  nor  any  privity  in  an  ordinary 
sense."  But  it  has  been  deliberately  decided  in  Birkley  &  al.  v.  Pres- 
grave,  1  East,  220,  that  assumpsit  will  lie  for  contribution  in  this 
latter  case;  and  every  reason  there  given  applies  with  equal  force  in 
support  of  the  action  of  assumpsit  by  one  co-surety  against  another. 
Accordingly  in  the  case  before  cited  of  Cowell  v.  Edwards,  the  court 
seem  to  think  it  settled,  that  assumpsit  will  lie  for  the  co-surety  in 
such  a  case ;  and,  as  was  before  observed,  the  action  in  that  form  has 
been  uniformly  maintained  in  our  courts.  Indeed  it  is  difficult  to 
conceive  of  a  right  in  one  party  founded  on  "the  fixed  principles  of 
justice,"  and  recognized  by  the  law  of  the  land,  wliich  does  not  involve 
a  corresponding  obligation  on  the  other  party:  and  a  legal  obligation 
is  a  sufficient  ground  of  an  implied  promise.  We  are  therefore 
satisfied,  both  on  principle  and  authority,  that  assumpsit  will  lie  on 
an  implied  promise  by  one  surety,  to  contribute  towards  indemnifying 
another. 

But  there  is  a  technical  objection,  in  the  present  case,  to  the  usual 
form  of  declaring;  inasmuch  as  the  plaintiff  cannot  allege  that  he 
paid  the  money  for  the  use  of  the  co-surety,  after  the  death  of  the 
latter:  and  if  he  alleges  that  he  paid  it  for  the  use  of  the  defendant  as 
executors,  it  would  be  to  charge  the  defendants  in  their  own  right, 
which  cannot  be  done. 

This  objection  is  answered  by  the  general  principle,  which  is  uni- 

'Statemont  of  f.icts  is  much  abridged,  and  a  portion  of  the  opinion  of  the 
court  is  omitted. — Ed. 


CHAP.    I.]  BACIIELDER   V.    FISK    AND   ANOTHER,    EX'RS.  261 

versally  recognized;  and  which  was  applied  in  the  case  before  cited 
from  1  East  220,  that  when  the  law  confers  a  right,  it  will  also 
confer  a  remedy.  That  case  also  furnishes  an  authority,  if  any  were 
wanted,  as  to  the  form  of  declaring.  The  declaration  there  con- 
tained the  usual  money  counts;  but  it  also  contained  a  special  count, 
setting  forth  all  the  facts  on  which  the  implied  promise  of  the  defend- 
ant was  founded ;  and  that  count  is  particularly  noticed  by  the  court, 
as  exhibiting  the  grounds  and  nature  of  the  action. 

The  actions  of  assumpsit  in  most  common  use  seem  to  have  ac- 
quired, in  some  measure,  the  character  of  the  ancient  formed  actions 
of  the  common  law :  but  they  are  still  only  actions  on  the  case,  in 
which  the  plaintiff,  whenever  he  finds  it  necessary  or  useful,  may  set 
out  his  whole  case;  and  if  that  shews  a  valid  legal  promise  by  the 
defendant,  whether  express  or  implied,  it  is  sufficient.  Now  it  is 
obvious  that  the  same  facts,  which,  when  proved  on  a  trial,  would  sup- 
port the  common  count  for  money  paid  by  the  plaintiff,  would  have 
the  like  effect  when  disclosed  in  a  declaration,  and  proved  in  like 
manner. 

We  are  therefore  satisfied  that  the  plaintiff  may  recover  in  this 
case  on  a  special  count,  setting  forth  all  the  material  facts,  and  alleg- 
ing the  liability  of  his  co-surety,  and  his  promise  accordingly,  to  pay 
to  the  plaintiff  one  moiety  of  what  he  should  be  compelled  to  pay  for 
the  principal.  It  is  not  usual,  on  an  agreed  statement  of  facts,  to 
examine  the  form  of  the  declaration  very  critically ;  and  we  have  not 
done  it  in  this  case.  The  facts  stated  exhibit  a  sufficient  ground  of 
action,  and  the  declaration  may  be  made  conformable  to  them,  if  it  is 
rot  already  so. 

As  to  the  assignment  of  property,  from  the  principal  to  the  plain- 
tiff, for  the  purpose  of  indemnifying  him,  his  co-surety  would  have 
had  reason  to  complain,  if  he  had  not  done  it  when  in  his  power. 
That  assignment  inures  to  the  benefit  of  both  the  sureties :  and  if  the 
plaintiff  has  received  any  money  from  that  source,  it  must  be  de- 
ducted from  the  amount  he  has  paid;  and  the  defendants  will  be 
liable  for  half  the  balance  only.  If  the  plaintiff,  after  recovering  what 
he  is  entitled  to  in  this  action,  should  receive  any  further  payment 
from  the  principal,  either  out  of  the  property  so  assigned  or  in  any 
other  way,  he  must  account  with  the  defendants  for  a  moiety  of  it.^ 

'Aoooid:  \Yarnor  v.  Morrison  (1862)  3  Allen.  5G0;  Weeks  r.  Parsons 
(1000)  170  Mass.  570;  Bradley  v.  Burwell  (1840)  3  Den.  01;  Tom  v.  Good- 
rich (1807)  2  Johns.  213.— Ed. 


262  DA  VIES  V.  HUMPHREYS.  [BOOK   II. 

DAVIES  V.  HUMPHREYS. 

Exchequer,  1840. 
[6  Meeson  £  Welsbij,  153.] 

Parke,  B.*  In  these  cases  actions  were  brought  by  the  plaintiff, 
one  of  the  makers  of  a  joint  and  several  promissory  notes,  dated  the 
27th  of  December,  1827,  for  the  sum  of  £300,  with  interest,  to  recover 
from  the  two  other  makers,  Evan  Humphreys  and  John  Humphreys,  a 
part  of  the  money  paid  by  him  to  the  payee,  he  having  paid  the  whole. 
In  the  action  against  Evan  Humphreys,  the  plaintiff  claimed  the  whole, 
alleging  that  the  defendant  was  the  principal  debtor.  Against  the 
defendant  John  Humphreys,  he  claimed  a  moiety  of  what  he  had  paid, 
alleging  that  the  defendant  was  a  co-surety.  There  were  two  pleas, — 
non  assumpsit,  and  the  Statute  of  Limitations ;  and  on  the  trial  at  the 
Spring  Assizes,  before  my  Brother  Coleridge,  it  appeared  that  the 
plaintiff  had  paid  the  whole  of  the  debt  and  interest,  of  wliich  the  sum 
of  £30  only  was  paid  within  six  years  before  the  commencement  of  the 
suit,  the  residue  having  been  discharged  before.  For  this  sum  the 
plaintiff  recovered  against  Evan  Humphreys,  leave  being  reserved  by 
the  learned  judge  to  move  to  increase  the  amount  of  the  whole  sum 
paid;  against  John  Humphreys,  the  plaintiff  recovered  a  moiety  of 
£30,  and  permission  was  also  given  to  move  to  increase  that  verdict. 

The  rule  for  increasing  the  amount  of  the  verdict  against  Evan 
Humphreys,  the  principal,  must  be  discharged  ;  for  it  is  clear  that  each 
sum  the  plaintiff,  the  surety,  paid,  was  paid  in  ease  of  the  principal, 
and  ought  to  have  been  paid  in  the  first  instance  by  him,  and  that  the 
plaintiff  had  a  right  of  action  against  him  the  instant  he  paid  it,  for  so 
much  money  paid  to  his  use.  However  convenient  it  might  be  to  limit 
the  number  of  actions  in  respect  of  one  suretyship,  there  is  no  rule  of 
law  which  requires  the  surety  to  pay  the  whole  debt  before  he  can  call 
for  reimbursement.  The  consequence  is,  that  the  plaintiff's  right  of 
action  against  the  principal  must  be  limited  to  the  full  amount  of  all 
the  payments  within  six  years,  and  this  being  the  amoimt  for  which  the 
verdict  was  taken,  the  rule  to  enter  a  verdict  for  a  larger  sum  must  be 
discharged.  Against  the  co-surety  the  case  is  different — the  Court 
will  give  it  further  consideration. 

And  now,  in  this  term,  the  judgment  of  the  Court,  on  the  remaining 
point  in  the  action  against  John  Humphreys,  the  surety,  was  delivered 
by 

Parke,  B.  A  rule  granted  in  this  case,  as  well  as  one  which  was 
granted  in  another  action  on  the  same  note  against  the  principal,  was 
argued  in  the  sittings  after  Trinity  Term.     In  the  course  of  the  last 

'Only  a  portion  of  the  opinion  of  the  Court  is  j^iven. — Ei). 


CHAP.    I.]  DAVIES    V.    HUMPHREYS.  363 

term,  the  Court  disposed  of  the  rule  in  the  latter  action,  and  one  of 
the  questions  is  this;  having  reserved  for  further  consideration  the 
question,  at  what  time  the  right  of  one  co-surety  to  sue  the  other  for 
contribution  arises. 

This  right  is  founded  not  originally  upon  contract,  but  upon  a  princi- 
ple of  equity,  though  it  is  now  established  to  be  the  foundation  of  an 
action,  as  appears  by  the  cases  of  Cowell  v.  Edwards  and  Craythorne  v. 
Swinburne;  though  Lord  Eldon  has,  and  not  without  reason,  inti- 
mated some  regret  that  the  courts  of  law  l]ave  assumed  a  jurisdiction 
on  this  subject,  on  account  of  the  difficulties  in  doing  full  justice  be- 
tween the  parties.  What,  then,  is  the  nature  of  the  equity  upon  which 
the  right  of  action  depends?  Is  it  that  when  one  surety  has  paid  any 
part  of  the  debt,  he  shall  have  a  right  to  call  on  his  co-surety  or  co- 
sureties to  bear  a  proportion  of  the  burthen,  or  that,  when  he  has  paid 
more  than  his  share,  he  shall  have  a  right  to  be  reimbursed  whatever 
he  has  paid  beyond  it  ?  or  must  the  whole  of  the  debt  be  paid  by  him 
or  some  one  liable,  before  he  has  a  right  to  sue  for  contribution  at  all  ? 
We  are  not  without  authority  on  this  subject,  and  it  is  in  favor  of  the 
second  of  these  propositions.  Lord  Elton,  in  the  case  of  Ex  parte 
Gifford,  states,  that  sureties  stand  with  regard  to  each  other  in  a 
relation  which  gives  rise  to  this  right  amongst  others,  that  if  one  pays 
more  than  his  proportion,  there  shall  be  a  contribution  for  a  propor- 
tion of  the  excess  beyond  the  proportion  which,  in  all  events,  he  is  to 
pay;  and  he  expressly  says,  "that  unless  one  surety  should  pay  more 
than  his  moiety,  he  would  not  pay  enough  to  bring  an  assumpsit 
against  the  other."  And  this  appears  to  us  to  be  very  reasonable ;  for, 
if  a  surety  pays  a  part  of  the  debt  only,  and  less  than  his  moiety,  he 
<?annot  be  entitled  to  call  on  his  co-surety,  who  might  himself  subse- 
quently pay  an  equal  or  greater  portion  of  the  debt :  in  the  former  of 
which  cases,  such  co-surety  would  have  no  contribution  to  pay,  and  in 
the  latter  he  would  have  one  to  receive.  In  truth,  therefore,  until  the  one 
has  ))aid  more  than  his  proportion,  either  of  the  whole  debt,  or  of  that 
part  of  the  debt  which  remains  unpaid  by  the  principal,  it  is  not  clear 
that  he  ever  will  be  entitled  to  demand  anything  from  the  other ;  and 
before  that,  he  had  no  equity  to  receive  a  contribution,  and  conse- 
quently no  right  of  action,  which  is  founded  on  the  equity  to  receive  it. 
Thus,  if  the  surety,  more  than  six  3'ears  before  the  action,  have  paid  a 
portion  of  the  debt,  and  the  principal  has  paid  the  residue  within  six 
years,  the  Statute  of  Limitations  will  not  run  from  the  payment  by 
the  surety,  but  from  the  payment  of  the  residue  by  the  principal,  for 
until  the  latter  date  it  does  not  appear  that  the  surety  has  paid  more 
than  his  share.  The  practical  advantage  of  the  rule  above  stated  is 
considerable,  as  it  would  tend  to  multiplicity  of  suits,  and  to  a  great 
inconvenience,  if  each  surety  might  sue  all  the  others  for  a  ratable 
proportion  of  what  lie  had  paid,  the  instant  he  had  paid  any  part  of 
the  debt.     But,  whenever  it  appears  that  one  has  paid  more  than  his 


264  BATARD  V.  HAWES.  [BOOK    II. 

proportion  of  what  the  sureties  can  ever  be  called  upon  to  pay,  then, 
and  not  till  then,  it  is  also  clear  that  such  part  ought  to  be  repaid  by 
the  others,  and  the  action  will  lie  for  it.  It  might,  indeed,  be  more  con- 
venient to  require  that  the  whole  amount  should  be  settled  before  the 
sureties  should  be  permitted  to  call  upon  each  other,  in  order  to  prevent 
multiplicity  of  suits;  indeed,  convenience  seems  to  require  that  courts 
of  equity  alone  should  deal  with  the  subject ;  but  the  right  of  action 
having  been  once  established,  it  seems  clear  that  when  a  surety  has 
paid  more  than  his  share,  every  such  payment  ought  to  be  reimbursed 
by  those  who  have  not  paid  theirs,  in  order  to  place  him  on  the  same 
footing.  If  we  adopt  this  rule,  the  result  will  be,  that  here,  the  Avhole 
of  what  the  plaintiff  has  paid  within  six  years  will  be  recoverable 
against  the  defendant,  as  the  plaintiff  had  paid  more  than  his  moiety 
in  the  year  1831 ;  and  consequently  the  rule  must  be  absolute  to  in- 
crease the  amount  of  the  verdict  from  £15  to  £30. 

Rules  accordingly.^ 


BATARD  V.  HAWES. 

Queen's  Bench^  1853. 

[2  Ellis  &  Blackburn,  287.] 

Lord  Campbell,  C.  J.,  in  this  term  (May  31st),  delivered  the 
judgment  of  the  Court. - 

It  appeared  in  this  case  that  the  plaintiff,  the  defendant,  and  several 
other  persons,  had  jointly  employed  Mr.  Baley,  an  engineer,  to  make 
plans  and  sections,  and  to  do  engineering  work,  preparatory  to  bring- 
ing a  bill  for  a  railway  before  Parliament.  The  plaintiff  was  sued 
by  Baley  for  the  amount  of  his  bill,  and  was  obliged  to  pay  him ; 
and  he  then  brought  the  present  action,  to  recover  from  the  defend- 
ant his  share  of  contribution. 

The  jury  found,  at  the  trial,  that  there  were  twelve  persons,  includ- 
ing the  plaintiff  and  the  defendant,  who  were  parties  to  the  original 

^Accord:  "Ex  parte  Snowdon.  17  Ch.  D.  44;  Preslar  v.  Stallworth,  37  Ala. 
402,  405 ;  Sherwood  v.  Dunbar,  6  Cal.  53  ;  Riehter  v.  Hennin<:,  110  Cal.  530 ;  Lytle 
V.  Pope,  11  B.  Mon.  297,  307;  Robinson  v.  Jenninps,  7  Bush,  630;  Hooper  r. 
Hooper,  81  Md.  155,  174;  Pass  v.  Grenada,  71  Miss.  426;  Singleton  v.  Townsend, 
45  Mo.  379;  IMagruder  v.  Admire,  4  Mo.  Ap.  133;  Sherwood  v.  Woodard, 
4  Dev.  360;  Leek  v.  Covington,  99  N.  Ca.  550;  Durkin  v.  Kuney,  19  Oreg.  71; 
Mateer  v.  Cockrill  (Texas  Civ.  Ap.  1898),  45  S.  W.  R.  751;  Bushnell  v.  Bush- 
nell.  77  Wis.  435. 

"The  surety's  right  to  contribution  is  complete  upon  payment  without  notice 
to  the  co-surety  of  the  payment  or  demand  of  repayment  of  the  contributive 

*Only  the  opinion  of  the  Court  is  given. — Ed. 


CHAP.    I.]  BATARD  V.   IIAWES.  265 

employment  of  and  contract  with  Baley;  and  that  two  of  those  per- 
sons had  died  before  the  payment  by  the  phiintiff  to  Baley.  The 
defendant  had  paid  into  court  an  amount  sutficient  to  cover  one- 
twelfth  of  the  amount  of  the  payment  to  Baley,  but  not  sufficient  to 
cover  one-tenth  of  that  amount.  And  the  question  thus  arose  for  our 
consideration,  whether  the  amount  to  be  recovered  by  the  plaintiff 
under  the  above  circumstances  was  to  be  calculated  according  to  the 
number  of  original  joint  contractors,  or  according  to  the  number  of 
those  who  were  alive  when  the  payment  was  made,  and  against  whom 
the  right  of  the  creditor  to  sue  at  law  had  survived.  The  point 
appeared  to  us  to  be  one  which  would  admit  of  considerable  doubt ; 
and  we  took  time  to  consider  our  judgment. 

If  the  right  of  contribution  is  to  be  considered  as  arising  merely 
from  the  fact  of  payment  being  made,  so  as  to  relieve  a  party  jointly 
liable  from  legal  liability,  we  should  have  to  look  to  the  number  of 
co-contractors  actually  liable  at  law  at  the  time  of  making  the  pay- 
ment which  relieved  them  from  liability.  But  we  think  that  it  is  not 
merely  the  legal  liability  to  the  creditor  at  the  time  of  the  payment 
that  we  are  to  regard,  but  that  we  must  look  to  the  implied  engage- 
ment of  each,  to  pay  his  share,  arising  out  of  the  joint  contract  when 
entered  into.  To  support  the  action  for  money  paid,  it  is  necessary 
that  there  should  be  a  request  from  the  defendant  to  pay,  either 
expressed  or  implied  by  law.  When  one  party  enters  into  a  legal  lia- 
bility for  and  at  the  request  of  another,  a  request  to  pay  the  money 
is  implied  by  law  from  the  fact  of  entering  into  the  engagement; 
and,  if  the  debt  or  liability  is  incurred  entirely  for  a  principal,  the 
surety,  being  liable  for  him  at  his  request,  and  being  obliged  to  pay, 
is  held  at  law  to  pay  on  an  implied  request  from  the  principal  that  he 
will  do  so.  In  a  joint  contract  for  the  benefit  of  all,  each  takes  upon 
himself  the  liability  to  pay  the  whole  debt,  consisting  of  the  shares 
which  each  co-contractor  ought  to  pay  as  between  themselves ;  and 
each,  in  effect,  takes  upon  himself  a  liability  for  each  to  the  extent 
of  the  amount  of  his  share.  Each,  therefore,  may  be  considered  as 
becoming  liable  for  the  share  of  each  one  of  his  co-contractors  at  the 

share.  Taylor  i\  Ri-ynolds,  53  Cal.  f>8G ;  Ward  v.  Henry,  5  Conn.  5n5;  Wood  r. 
Perry,  9  Iowa,  479;  Morrison  r.  Poyntz.  7  Dana,  .307:  Chaffee  r.  Jones, 
19  Pick.  260;  Vliet  v.  WyckoflF,  42  X.  J.  Eq.  044;  Sherrod  v.  Woodard,  4  Dev. 
360;  Parham  v.  Green,  64  N.  Ca.  436;  Bright  r.  Lennon,  83  N.  Ca.  133; 
Cage  V.  Foster,  5  Verg.  261  (principal  being  insolvent)  ;  Foster  r.  Johnson, 
5  Vt.  60;  Mason  v.  Pierson,  69  Wis.  585,  Accord. 

"Williams  v.  Williams,  5  Oh.  444;  Carpenter  v.  Kelley.  9  Oh.  lOG;  Neil- 
son  V.  Fry,  16  Oh.  St.  552,  contra." 

And  see,  also,  Pitt  v.  Purssord  (1841)  S  M.  &  W.  538;  Kemp  r.  Finden 
( 1844)  12  M.  &  W.  421 ;  Gospel  v.  Swinden  ( 1844)  1  Dow  &  L.  888 :  Reynolds  v. 
Wheeler  (1801)  10  C.  B.  (N.  S.)  501;  Thayer  v.  Daniels  (1872)  110  Mass. 
345.— Ed. 


266  BATARD  V.  HAWES.  [BOOK    11. 

request  of  such  co-contractor;  and,  on  being  obliged  to  pay  such 
share,  a  request  to  pay  it  is  implied  as  against  the  party  who  ought 
to  have  paid  it,  and  who  is  relieved  from  paying  what,  as  between 
himself  and  the  party  who  pays,  he  ought  himself  to  have  paid  accord- 
ing to  the  original  arrangement.  If  the  original  arrangement  was  in- 
consistent with  the  fact  that  each  was  to  pay  his  share,  no  action  for 
such  contribution  could  be  maintained.  Thus,  if,  by  arrangement 
between  ourselves,  one  of  the  joint  contractors,  though  liable  to  the 
creditor,  was  not  to  be  liable  to  pay  any  portion  of  the  debt,  it  is 
clear  that  no  action  could  be  maintained  against  him;  though,  if 
the  relief  from  the  legal  liability  were  alone  looked  to,  it  would  follow 
that  he  was  liable  to  contribute.  So,  where  one  surety  enters  into  an 
engagement  of  suretyship  at  the  request  of  his  co-surety,  it  has  been 
held  that  the  co-surety,  paying  the  whole,  can  maintain  no  action. 
Turner  v.  Davies. 

Our  opinion  is  in  conformity  with  the  cases  in  which  it  has  been 
held  that  a  co-surety  is  not  liable  at  law  to  a  greater  extent  than  his 
share,  with  reference  to  the  original  number  of  sureties,  notwithstand- 
ing the  insolvency  of  one  or  more  of  the  co-contractors ;  and  also 
agrees  with  the  rule  laid  down  by  Mr.  Justice  Bayley,  in  Browne  v. 
Lee,  6  B.  &  C.  697,  where  he  says :  "I  think  that  at  law  one  of  three  co- 
sureties can  only  recover  against  any  one  of  the  others  an  aliquot  pro- 
portion of  the  money  paid,  regard  being  had  to  the  number  of  sureties" 

It  was  urged  before  us,  by  Mr.  Bramwell,  that  if  there  were  an 
implied  original  arrangement  between  the  co-contractors,  an  action 
ought  to  be  maintainable  on  such  promise  against  the  executors  of  a 
deceased  co-contractor;  and  he  said  that  there  being  no  instance 
of  such  an  action  went  strongly  to  show  that  there  was  no  such  orig- 
inal engagement.  It  might  be  said,  on  the  other  hand,  that  there 
is  no  instance  in  the  books  of  the  party  who  has  paid  recovering  more 
than  an  aliquot  proportion  with  reference  to  the  original  number  of 
co-contractors,  by  reason  of  the  death  of  one  or  more  of  them.  But 
it  is  a  more  satisfactory  answer,  that  there  is  very  strong  authority 
for  holding  that  such  an  action  will  lie  against  executors. 

In  Ashby  v.  Ashby,  7  B.  &  C.  444,  those  very  learned  judges  Mr. 
Justice  Bayley  and  Mr.  Justice  Littledale  rely  on  such  an  action 
lying  against  executors  as  the  ground  of  their  judgments  on  the  point 
directly  before  them.  Mr.  Justice  Bayley  says  (7  B.  &  C.  449)  : 
"To  put  a  plain  case,  suppose  two  persons  are  jointly  bound  as  sureties, 
one  dies,  the  survivor  is  sued  and  is  obliged  to  pay  the  whole  debt. 
If  the  deceased  had  been  living,  the  survivor  might  have  sued  him 
for  contribution  in  an  action  for  money  paid,  and  I  think  he  is 
entitled  to  sue  the  executor  of  the  deceased  for  money  paid  to  his  use 
as  executor."  And  "Mr.  Justice  Littledale  says  (7  B.  &  C.  451)  : 
"Suppose  that  a  plaintiff  had  bocomo  bound  jointly  with  a  testator, 
and  after  bis  drath  had   p;iid  tlic  wliftlc  debt;  T  shoiilil   tliink  that 


CHAP.    I.]  BATARD  V.   IIAWES.  2^7 

an  action  against  the  executor  for  money  paid  to  his  use  might  be 
supported,  and  that  the  plaintiff  would  be  entitled  to  judgment  de 
bonis  testaloris."  See  also  2  Williams  on  Executors,  1st  edit.  1088.^ 
Such  an  action  against  executors  can  only  be  supported  on  the 
ground  of  the  existence  of  such  an  implied  original  engagement  as 
we  have  adverted  to,  which,  being  made  in  the  testator's  time,  would 
bind  the  executors;  and  such  an  engagement,  if  implied,  would  form 
a  good  legal  ground  for  supporting  the  action  of  money  paid. 

We  were  pressed  also  with  the  dictum  of  Lord  Eldon  in  Cray- 
thorne  v.  Swinburne,  referred  to  by  Parke,  B.,  in  Kemp  v.  Finden, 
12  M.  &  W.  421,  424,  and  in  Davies  v.  Humphreys,  as  to  the  action 
of  contribution  being  founded  rather  upon  a  principle  of  equity  than 
upon  contract.  The  expressions  of  Lord  Eldon,  however,  will  be 
found  to  relate  rather  to  the  origin  of  the  implied  contract  than 
to  the  time  at  which  it  is  to  be  taken  to  be  made.  He  says :  "And  I 
think  that  right  is  properly  enough  stated  as  depending  rather  upon 
a  principle  of  equity  than  upon  contract ;  unless  in  this  sense :  that, 
the  principle  of  equity  being  in  its  operation  established,  a  contract 
may  be  inferred  upon  the  implied  knowledge  of  that  principle  by  all 
persons,  and  it  must  be  upon  such  a  ground  of  implied  assumpsit, 
that  in  modern  times  courts  of  law  have  assumed  a  jurisdiction  upon 
this  subject."  This  passage  must  be  taken  to  admit  the  existence  of 
an  implied  contract,  and  does  not  appear  to  us  to  be  inconsistent  with, 
or  to  outweigh,  the  clear  expression  of  the  opinion  of  the  judges  in 
Ashby  V.  Ashby,  7  B.  &  C.  444. 

Several  inconveniences  and  difficulties  were  pointed  out  on  both 
sides,  in  the  course  of  the  argument,  as  likely  to  arise  from  the 
adoption  of  each  of  the  rules  contended  for;  but  we  think  that  the 
rules  suggested  by  the  defendant's  counsel  will  be  found  much  more 
simple,  and  less  liable  to  the  inconveniences  pointed  out,  than  that 
contended  for  on  behalf  of  the  plaintiff. 

After  entertaining  considerable  doubt  on  the  subject,  we  have  come 
to  the  conclusion  that  the  rule  most  in  conformity  with  the  authori- 
ties, the  principles  of  law  and  the  convenience  of  the  case,  is  to  look 
to  the  number  of  original  co-contractors  for  the  purpose  of  determin- 
ing the  aliquot  part  which  each  contributor  is  to  pay.  And,  the 
defendant  in  the  present  case  having  paid  into  court  a  sum  sufficient 
to  cover  the  amount  d\ie  in  proportion  to  the  number  of  the  original 
contractors,  the  rule  for  entering  the  verdict  for  the  defendant  must 
be  made  absolute.- 

■Vol.  II.  p.  1509,  in  4th  edition. 

'"The  first  judicial  intimation  tliat  a  surety  nii<iht  sue  at  common  law  for 
contribution  is  believed  to  be  the  following  remark  of  Lord  Kenyon  in  Turner 
V.  Davies  (1790)  2  Esp.  479:  'I  have  no  doubt,  that  where  two  parties  be- 
come joint  sureties  for  a  third  person,  if  one  is  called  upon  and  forced  to 
paj  the  whole,  he  has  a  right  to  call  on  his  co-surety  for  contribution.'     Five 


368  battersey's  case.  [book  ii. 

BATTEESEY'S  CASE. 

Michaelmas.    Common  Pleas,  1633. 

[Winch,  48.] 

An  action  upon  the  case  was  brought  against  one  H  or  deer  e  upon  an 
assumpsit,  and  he  declared  tliat  the  Defendant  had  arrested  one 
Battersey,  by  vertue  of  a  Commission  of  Rebellion  out  of  the  Cinque 
ports,  and  that  the  Plantiff  keeping  a  Common  Inne,  the  Defendant 
brought  the  said  Battersey  to  his  Inne,  and  requested  the  Plantiff  to 
keep  him  a  day  and  a  night,  and  promised  in  consideration  there  upon 
that  he  would  save  him  harmless;  and  he  shewed  that  he  kept  the 
prisoner  accordingly;  and  that  the  said  Battersey  brought  an  action 
of  false  imprisonment  against  him,  and  recovered  against  him,  upon 
which  the  action  accrewed :  and  upon  non  assumpsit  pleaded,  it  was 
found  for  the  Plantiff,  and  now  it  was  moved  in  arrest  of  judgement, 
because  he  had  not  shewed  that  the  said  Battersey  was  lawfully  arrested 
and  imprisoned,  and  then  if  a  man  will  without  cause  arrest  a  man, 
and  promise  in  this  case,  no  action  will  lie,  for  it  is  no  consideration 
because  that  the  imprisonment  is  unlawful,  but  Hobert  chief  justice, 
HuTTON  a7icl  Winch  contrary:  for  be  the,  imprisonment  lawful,  or 
not  lawful,  he  might  not  take  notice  of  that:  as  if  I  request  another 
man  to  enter  into  another  mans  groimd,  and  in  my  name  to  drive 
out  the  beasts,  and  impound  them,  and  promise  to  save  him  harmless. 
this  is  a  good  assumpsit,  and  yet  the  act  is  Tortious,  but  by  Hutton, 
where  the  act  appears  in  it  self  to  be  unlawful,  there  it  is  otherwise, 
as  if  I  request  you  to  beat  another,  and  promise  to  save  you  harmless, 
this  assumpsit  is  not  good,  for  the  act  appears  in  it  self  to  bo  unlawful, 
but  otherwise  it  is  as  in  our  case,  when  the  act  stands  indifferent,  but 
Hobert  said,  it  may  be  there  is  a  difference  between  a  publick  officer, 
and  a  private  man,  for  if  the  Sheriff  arrest  a  man  unlawfully,  and 
promise  as  before,  this  is  a  good  assumpsit,  but  perchance  otherwise 
of  a  private  man  as  here,  but  in  the  principal  case,  the  Defendant  had 
pleaded  non  assumpsit,  and  this  implies  a  Lawful  imprisonment,  for 
otherwise  the  Defendant  might  have  given  the  unlawful  imprisonment 
in  evidence,  and  Judgement  was  commanded  to  be  entered  for  the 
Plantilf. 

years  later,  in  North  Carolina,  the  surety  failed  to  obtain  contribution,  be- 
cause he  sued  at  law  instead  of  in  equity.  Carrington  v.  Carson,  Cam.  & 
N.  Conf.  R.  21G." 

Cowell  V.  Edwards  (1800)  2  Bos.  &  P.  268,  is  the  first  case  in  which 
contribution  was  squarely  allowed  in  a  court  of  law. 

For  authorities  pro  and  con.  see  Ames'  Cases  on  Suretyship  (from  which 
this  note  is  takoii),  P-  •'j-'H,  note. — Ed. 


CHAP.   I,]  BAILEY  AND  ANOTHER  V.   BUSSING,  369 

MERRYWEATHER  v.  NIXAN. 

King's  Bench,  1799. 

[8  Term  Reports,  18G.] 

One  Starkey  brought  an  action  on  the  case  against  the  present 
plaintiff  and  defendant  for  an  injury  done  by  them  to  his  reversion- 
ary estate  in  a  mill,  in  which  was  included  a  count  in  trover  for  the 
machinery  belonging  to  the  mill ;  and  having  recovered  £840  he  levied 
the  whole  on  the  present  plaintiff,  who  thereupon  brought  this  action 
against  the  defendant  for  a  contribution  of  a  moiety,  as  for  so  much 
money  paid  to  his  use. 

At  the  trial  before  Mr.  Baron  Thomson  at  the  last  York  assizes  the 
plaintiff'  was  nonsuited,  the  learned  judge  being  of  opinion  that  no 
contribution  could  by  law  be  claimed  as  between  joint  wrong-doers; 
and  consequently  this  action  upon  an  implied  assumpsit  could  not  be 
maintained  on  the  mere  ground  that  the  plaintiff  had  alone  paid  the 
money  which  had  been  recovered  against  him  and  the  other  defendant 
in  that  action. 

Chamhre  now  moved  to  set  aside  the  nonsuit ;  contending  that,  as  the 
former  plaintiff  had  recovered  against  both  these  parties,  both  of  them 
ought  to  contribute  to  pay  the  damages.     But 

Lord  Kenyon,  C.  J.,  said  there  could  be  no  doubt  but  that  the 
nonsuit  was  proper ;  that  he  had  never  before  heard  of  such  an  action 
having  been  brought  where  the  former  recovery  was  for  a  tort.  That 
the  distnnction__was_clear  between  this  case  and  that  of  a  jointjudg- 
ment  against  several  defendants  in  an  action  of  assumpsit.  And  that 
tlii?"~deetaion  would  not  affect  eaees— of~TTrdemiiTt}%  where  one  man 
employed  another  to  do  acts,  not  unlawful  in  themselves,  for  the  pur- 
pose of  asserting  a  right. ^ 

Rule  refused. 

The  case  of  Philips  v.  Biggs,  Hardr.  164,  was  mentioned  by  Law, 
for  the  defendant,  as  the  only  case  to  be  found  in  the  books  in  which 
the  point  had  been  raised;  but  it  did  not  appear  what  was  ultimately 
done  upon  it. 


BAILEY  AXD  ANOTHER,  EXECUTORS  v.  BUSSIXG. 

Supreme  Court  of  Errors  of  Connecticut,  1859. 

[28  Connecticui  Reports.  455.] 

Assumpsit.    The  plaintiffs  sued  as  executors  of  one  Aaron  Turner. 
In  1852,  a  judgment  was  recovered  against  Turner,  the  defendant 

'See  the  admiralty  case  of  The  Englishman  (1805)   L.  R.  Trohate  Div.  212, 
215-218,  in  which  the  principal  case  is  commented  upon  and  limited. — Ed. 


270  BAILEY  AND  ANOTHER  V.   BUSSING.  [BOOK  H. 

Bussing,  and  one  \Yhitlock,  for  an  injury  to  a  person  travelling  on 
the  highwa}',  caused  by  the  negligent  management  of  a  public  stage  in 
the  running  of  which  the  defendants  were  alleged  to  be  jointly  inter- 
ested. The  defendant,  Bussing,  was  the  driver  of  the  stage,  and  the 
injury  was  caused  by  his  negligence.  Turner  paid  the  amount  of  the 
judgment,  and  the  present  suit  was  brought  by  his  executors  to  recover 
one-third  of  the  amount  so  paid  from  Bussing.  On  the  trial  before  the 
superior  court,  on  the  general  issue  closed  to  the  court,  the  plaintiffs 
introduced  the  record  of  the  judgment,  with  parol  evidence  of  the 
character  of  the  injury  for  which  it  was  recovered  and  of  the  relation 
of  the  defendant  and  of  Turner  to  it,  and  proved  the  payment  of 
'$1,300  by  Turner  in  satisfaction  of  the  judgment;  and  upon  this 
evidence  claimed  the  right  to  recover.  The  defendant  claimed  that 
there  could  be  no  recovery  in  the  suit,  because  Turner  and  the  defend- 
ant were  both  wrong-doers,  between  whom  there  could  be  no  legal 
claim  for  contribution,  and  on  the  ground  that,  if  the  defendant  was 
liable  at  all,  it  would  be  only  in  case  and  not  in  assumpsit.  The  court 
rendered  judgment  for  the  plaintiff,  and  the  defendant  moved  for  a 
new  trial. 

Ellsvi^orth,  J.  This  is  an  action  of  assumpsit,  to  compel  a  con- 
tribution for  money  paid  on  a  judgment  against  three  defendants, 
Whitlock,  Aaron  Turner,  the  plaintiffs'  testator,  and  Bussing,  the 
present  defendant.  That  there  was  a  judgment  rendered  by  the 
superior  court  for  Fairfield  County  at  its  February  term  in  1852, 
against  Whitlock,  Turner,  and  Bussing,  and  that  Turner  was  com- 
pelled to  pay,  and  did  pay,  on  the  execution,  the  whole  amount  of  the 
judgment,  or  such  a  sum  as  was  received  in  satisfaction  of  the  judg- 
ment, is  admitted  or  not  denied.  This  evidence,  it  is  said,  would 
in  law  prima  facie  entitle  the  plaintiffs  to  recover  one-third  of  the  sum 
paid  from  the  defendant,  and  that  there  must  be  such  recovery  unless 
there  is  something  peculiar  to  the  present  case  which  saves  it  from 
the  application  of  the  principle  ordinarily  applicable  to  such  cases. 

If  this  judgment  had  been  recovered  on  a  joint  contract  or  joint 
liability  of  any  kind  sounding  in  contract,  the  production  of  the  judg- 
ment, and  proof  of  payment  by  Turner  of  the  whole  sum,  would  of 
course  show  a  good  cause  of  action  in  the  plaintiffs  for  the  recovery 
from  Bussing  of  one-third  the  amount  paid.  Is  there  anything  on 
this  record  which,  when  taken  in  connection  with  the  evidence  re- 
ceived in  the  case,  distinguishes  this  case  from  the  one  just  supposed. 

Tbejlcicnclant  insists  that  that  judgment  was  rendered  in  an  action 
of_iprt,  and  that  in  that  class  of  cases  there  is  to  be  no  contribution 
among  wrong-doers  ;  the  maxim  of  law  being,  as  he  claims,  that  among 
tort-feasors  tlwre  is  no  contribution.  To  meet  this  objection,  the 
plaintiffs  offered  evidence,  and  we  think  with  entire  propriety,  to 
prove  that,  while  the  maxim  might  be  true  as  a  general  rule,  the  case 
on  trial  belonged  to  a  class  of  cases  to  which  it  had  no  application, 


CHAP.    I.]  BAILEY  AND  ANOTHER   I'.   BUSSING.  271 

for  that  hjere  there  was  no  personal  wrong,  not  even  negligence_m  a. 
culpable  sense,  on  the  part  of  Turner,  and  that  he  had  been  found 
guilty  only  by  implication,  or  legal  iinerence  from  a  supposed  relation 
to  bussing,  the  actual  wrong-doer,  through  whose  neglect  the  other 
two  defe^ants  had  beeiTsubjected  by  the  jury. 

No  objection  was  made  to  the  reception  of  the  evidence,  and  we 
think  none  could  properly  have  been  made.  The  court  received  it, 
and  found  the  fact  to  be  as  claimed  by  the  plaintiffs,  that  Turner 
was  not  present,  and  had  no  participation  in  the  negligent  conduct 
of  the  driver  of  the  stage  which  caused  the  injury  to  Mrs.  Haight, 
notwithstanding  that,  under  the  particular  charge  of  the  court  in  that 
case,  the  jury  found  that  Turner  was,  in  a  legal  sense,  implicated  arid 
liable,  even  though  there  was  not  any  actual  wrong  on  his  part. 

What  then  is  this  case?  And  what  is  the  true  doctrine  of  the  law 
as  to  contribution,  or,  as  it  may  be,  full  indemnity,  where  there  has 
been  no  illegal  act  or  conduct  on  the  part  of  him  who  seeks  for  a 
contribution  ? 

And  first,  let  us  remark,  that  we  apprehend  that  there  can  be  no 
objection  among  the  parties  themselves,  to  proof  aliunde  that  a  joint 
judgment  in  an  action  on  the  case  like  the  present,  was  for  the 
default  or  neglect  of  one  of  the  defendants  only.  This  fact  appears 
not  unfrequently  on  the  face  of  the  record  itself,  as  when  the  master 
is  sued  for  the  negligence  of  his  servant,  but  if  the  form  of  the  action 
does  not  show  it,  and  an  inquiry  is  necessary  to  prove  it,  we  know 
of  no  rule  of  evidence  which  precludes  or  forbids  such  inquiry.  Such 
is  the  constant  practice  in  actions  on  contracts,  whatever  be  the  form 
of  the  declaration  or  judgment,  and  the  same  course  must  be  proper 
in  this  instance.  It  must  be  a  very  stubborn  rule  of  law  to  raise  in 
our  minds  any  doubt  upon  the  subject. 

ThfiL-xeason^assigned  jn  the  books  for  den^ying  contribution  among 
trespassers  is,  that  no  right  of  action  can  be  based  on  a  violation  of 
law,_that  is,  where  the  act  is  known  to  be  such  or  is  apparently  of 
that  character.  A  guilty  trespasser  it  is  said  cannot  be  allowed  to 
appeal  to  the  law  for  an  indemnity,  for  he  has  placed  himself  without 
its  pale  by  contemning  it,  and  must  ask  in  vain  for  its  interposition 
in  his  behalf.  If,  however,  he  was  innocent  of  an  illegal  purpose, 
ignorant  of  the  nature  of  the  act,  which  was  apparently  correcjt^nd 
proper,  the  rule  will  change  with  its  reason,  and  he  may  then  have 
an  indemnity,  or  as  the  case  may  ^  a  contribution,  as  a  servant 
yielding  obedience  to  the  command  of  his  master,  or  an  agent  to  his 
principal  in  what  appears  to  be  right,  an  assistant  rendering  aid  to  a 
sheriff  in  the  execution  of  process,  or  common  carriers,  to  whom  is 
committed  and  who  innocently  carry  away  property  which  has  been 
stolen  from  the  owner.  Indemnity,  or  contribution  to  the  full  amount, 
is  allowable  here,  and  it  can  be  enforced  by  action,  if  refused,  whether 
the  person  seeking  it  has  been  subjected  in  case  or  assumpsit  to  the 


272  BAILEY  AXD  ANOTHER  V.    BUSSING.  [BOOK    II. 

damages  of  which  he  complains.  And  since  in  many  instances  the 
person  injured  has  an  election  to  sue  in  case  or  assumpsit,  it  is  not 
possible  that  the  form  of  action  in  which  the  party  seeking  for  an 
indemnity  or  contribution  has  been  subjected,  should  be  the  criterion 
of  his  right  to  call  for  it.  One  partner  or  one  joint  proprietor  may 
do  that  which  will  subject  all  the  rest  in  case  or  assumpsit,  as  the 
fact  may  be,  but  there  may  be  a  right  to  contribution  notwithstand- 
ing, and  in  some  cases,  if  indeed  the  present  is  not  one  of  them,  a  full 
indemnity  may  be  justly  demanded  from  the  person  doing  the  wrong, 
by  the  other  partners  whom  he  has  involved  in  loss  by  his  wrongful 
act.  The  form  of  action  then  is  not  the  criterion.  We  must  look 
further.  We  must  look  for  personal  participation,  personal  culpa- 
bilit}^,  personal  knowledge.  If  we  do  not  find  these  circumstances, 
but  perceive  only  a  liability  in  the  eye  of  the  law,  growing  out  of  a 
mere  relation  to  the  perpetrator  of  the  wrong,  the  maxim  of  law  that 
there  is  no  contribution  among  wrong-doers  is  not  to  be  applied. 
Indeed  we  think  this  maxim  too  much  broken  in  upon  at  this  day 
to  be  called  with  propriety  a  rule  of  law,  so  many  are  the  exceptions 
to  it,  as  in  the  cases  of  master  and  servant,  principal  and  agent, 
partners,  joint  operators,  carriers,  and  the  like. 

One  of  the  earliest  cases  where  the  maxim  is  recognized  is  Merry- 
weather  V.  Nixan,  8  T.  E.  186,  where  the  plaintiff  was  the  active 
wrong-doer.  Having  paid  the  whole  damage,  he  sought  for  a  con- 
tribution. It  was  denied  him,  and  rightfully  so,  upon  the  strength 
of  the  maxim  referred  to.  But  even  here,  lest  a  wrong  inference 
should  be  drawn  from  the  decision.  Lord  Kenyon,  C.  J.,  says :  "This 
decision  will  not  affect  cases  of  indemnity  where  one  man  employed 
another  to  do  an  act  not  unlawful  in  itself."  The  earlier  case  of 
Philips  V.  Biggs,  Hardres,  164,  in  which  this  point  was  raised,  was 
never  decided.  In  Wooley  v.  Batte,  2  Car.  &  P.  417,  before  Justice 
Parke,  one  stage  proprietor  had  been  sued  alone  in  case  for  an  injury 
to  a  passenger  through  the  neglect  of  the  coachman,  and,  having  paid 
the  damages,  he  brought  assumpsit  for  a  contribution,  and  recovered 
on  the  ground  that  in  him  there  was  no  personal  fault.  In  Adamson  v. 
Jarvis,  4  Bing.  66,  suit  was  brought  for  indemnity  by  an  auctioneer 
against  his  employer,  he  having  sold  goods  which  did  not  belong  to  his 
employer,  and  for  which  he  had  l^een  compelled  to  pay  upon  a  judg- 
ment recovered  against  him  by  the  owner,  being  himself  innocent. 
The  court  held  that  he  could  recover.  Best,  C.  J.,  said:  "From  the 
inclination  of  the  court  in  the  case  in  Hardres  and  from  the  con- 
cluding part  of  Lord  Kenyon's  judgment  in  Merryweathor  v.  iSTixan, 
and  from  reason,  justice,  and  sound  policy,  the  rule  that  wrong-doers 
cannot  have  redress  or  contribution  against  each  other,  is  confined 
to  cases  where  the  person  seeking  redress  must  be  presumed  to  have 
known  that  he  was  doing  an  unlawful  act.  In  Belts  v.  Gibbins,  2  A.  & 
E.  57,  Lord  Denman,  C.  J.,  says:  "The  general  rule  is,  that  between 


€HAP.    I.]  BAILEY    AND   ANOTHER    V.    BUSSING,  373 

wrong-doers  there  is  neither  indemnity  nor  contribution.  The  ex- 
ception is  where  the  act  is  not  clearly  illegal  in  itself.  If  they  were 
acting  bona  fide,  I  cannot  conceive  what  rule  there  can  be  to  hinder 
the  defendant  from  being  liable  for  the  risk."  Again,  speaking  of 
Battersey's  case,  Winch,  48,  he  says  that  it  shows  that  there  may  be 
an  indemnity  between  wrong-doers,  unless  it  appears  that  they  have 
been  jointly  concerned  in  doing  what  the  party  complaining  knew  to 
be  illegal.  In  Story  on  Partnership,  §  220,  the  learned  commentator 
says,  speaking  of  the  maxim  that  there  is  no  contribution  among 
wrong-doors,  "but  the  rule  is  to  be  understood  according  to  its  true 
sense  and  meaning,  which  is  where  the  tort  is  a  kno^^'n,  meditated 
wrong,  and  not  where  the  party  is  acting  under  the  supposition  of  the 
innocence  and  propriety  of  the  act,  and  the  tort  is  one  by  construc- 
tion or  inference  of  law.  In  the  latter  case,  although  not  in  the 
former,  there  may  be  and  properly  is  a  contribution  allowed  by  law 
for  such  payments  and  expenses  between  the  constructive  wrong-doers, 
whether  partners  or  not."  The  cases  are  all  brought  together  in  Chitty 
on  Contracts,  502,  where  the  author  most  fully  sustains  by  his  own 
remarks  the  qualifications  of  the  rule  laid  down  by  Lord  Denman. 
I  will  here  leave  this  topic,  only  repeating  my  remark  that  the  maxim 
in  question  is  scarcely  worthy  of  being  considered  a  general  rule  of 
law,  for  it  is  applicable  only  to  a  definite  class  of  cases,  and  to  that 
class  the  case  before  us  does  not  belong. 

A  few  words  will  suffice  as  to  the  remaining  objection,  which  goes  to 
the  form  of  action.  The  defendant  insists  that  it  should  have  been 
case,  and  not  assumpsit,  and  that  the  evidence  adduced  by  the  plain- 
tiff does  not  support  his  declaration.  We  think  this  objection  is  not 
well  founded,  and  that  the  plaintiff  has  brought  the  proper  action. 
He  sues  for  money  paid,  laid  out,  and  expended,  which,  to  say  the 
least,  it  was  the  duty  of  the  defendant  to  pay,  quite  as  much  as  Whit- 
lock  and  Turner,  and  it  was  paid  in  satisfaction  of  a  judgment  against 
the  three.  If  assumpsit  will  not  reach  such  a  case,  it  must  be  because 
there  are  no  merits  in  the  case  upon  which  to  sustain  any  action, 
which  we  have  endeavored  to  show  is  not  the  fact. 

That  judgment  was  prima  facie  evidence  of  a  joint  debt  or  duty 
against  the  three,  and  the  further  evidence  adduced  by  the  plaintiff 
did  not  vary  the  apparently  good  cause  of  action,  but  was  offered  for 
the  purpose  of  proving  that  Turner  paid  the  whole  judgment,  and  to 
show  the  character  of  the  negligence  for  which  the  defendants  had 
been  subjected,  and  whose  negligence  it  was  in  fact  that  had  thus 
involved  him  in  such  a  heavy  loss.  The  pa^nnent  by  Turner  was  not 
a  voluntary  payment,  nor  was  it  made  officiously,  nor  on  a  mere  moral 
obligation.  Had  it  been,  possibly  the  defendant  here  could  avoid  any 
contri])ution.  But  it  was  an  act  of  necessity.  Mr.  and  Mrs.  Haight 
demanded  the  whole  judgment  of  Turner,  and  he  paid  it  on  the 
execution.    Such  a  payment  I  must  think  stands  on  the  same  ground, 


274  BAILEY   AND   ANOTHER  V.   BUSSING.  [BOOK    II. 

if  my  reasoning  hitherto  is  correct,  as  if  it  had  ])ecn  made  on  a  judg- 
ment founded  on  a  joint  contract.  In  equity  and  justice  it  is  money 
paid  for  the  person  who,  in  the  end,  is  bound  to  pay  the  debt,  or  so 
much  of  it  as  belongs  to  him  to  pay.  Why  then  should  the  plaintiff 
sue -in  case  rather  than  assumpsit? 

Let  us  look  at  some  of  the  cases  of  assumpsit  for  money  paid,  and 
the  principle  settled  by  them.  Generally,  it  is  sufficient  if  the  money 
is  paid  for  a  reasonable  cause  and  not  officiously.  Brown  v.  Hodgson, 
4  Taunt.  189;  Skillin  v.  Merrill,  16  Mass.  40;  Jefferys  v.  Gurr,  2  B.  & 
Ad.  833;  Pownal  v.  Ferrand,  6  B.  &  C.  439;  Exall  v.  Partridge, 
8  T.  E.  308;  Toussaint  v.  Martinnant,  2  T.  R.  100.  So  where  it  has 
been  paid  to  relieve  a  neighbor's  goods  from  legal  distraint  in  his 
absence,  Jenkins  v.  Tucker,  1  H.  Bl.  90,  for  there  was  a  legal  duty 
resting  on  the  defendant.  So  to  defray  the  expenses  of  his  wife's 
funeral,  for  there  was  a  like  duty.  So  to  reimburse  the  expenses  of 
bail  for  pursuing  the  principal  and  bringing  him  back  and  surrender- 
ing him  in  court.  Fisher  v.  Fallows,  5  Esp.  171.  So  for  getting  the 
defendant's  goods  free,  which  had  been  distrained  by  the  landlord  for 
the  plaintiff's  debt,  they  being  at  the  time  on  the  tenant's  premises. 
Exall  V.  Partridge,  8  T.  R.  308.  Or  for  money  paid  to  indemnify 
the  owner  for  the  loss  of  his  goods,  which  the  plaintiff,  an  auctioneer, 
had  by  mistake  delivered  to  the  defendant,  who  had  appropriated  them 
to  his  own  use.  Brown  v.  Hodgson,  4  Taunt.  189.  Though  of  this 
case  Lord  Ellenborough,  in  Sills  v.  Laing,  4  Campb.  81,  said  that 
he  thought  the  action  should  have  been  special,  but  the  right 
of  action  he  did  not  question.  So  where  money  has  been  paid  by  a 
surety,  or  by  one  of  several  joint  debtors.  1  Steph.  N.  P.  324,  326. 
So  where  one  has  accepted  for  honor  a  protested  bill  and  paid  it. 
In  Pownal  v.  Ferrand,  6  B.  &  C.  439,  Tenterden,  C.  J.,  says :  "The 
plaintiff  is  entitled  to  recover  in  assumpsit  upon  the  general  principle 
that  one  man  who  is  compelled  to  pay  money  which  another  is  boimd 
by  law  to  pay,  is  entitled  to  be  reimbursed  by  the  latter;"  and  Lord 
Loughborough,  in  Jenkins  v.  Tucker,  1  H.  Bl.  90,  remarked  that 
there  are  many  cases  of  the  sort  (the  funeral  expenses  of  another's 
wife  in  his  absence),  where  a  person  having  paid  money  which  another 
was  under  a  legal  obligation  to  pay,  though  without  his  knowledge 
or  consent,  may  maintain  an  action  to  recover  back  the  money  so  paid. 
The  views  of  Chitty,  in  his  treatise  on  Contracts,  p.  469,  and  of 
Greenleaf,  in  his  treatise  on  Eviflencc,  vol.  2,  sec.  108,  are  in  harmony 
with  this  principle,  tbat  where  the  plaintiff  shows  that,  cither  by  com- 
pulsion of  law,  or  to  relieve  himself  fioin  liability,  or  to  save  himself 
from  damage,  he  has  paid  money,  not  olliciously,  which  the  defendant 
ought  to  have  paid,  a  count  in  assumpsit  for  money  paid  will  be 
supported. 

These  cases  are  most  abundant  to  show  that  the  present  action  is 
well  brought  and  should  be  sustained,  if  the  payment  made  by  Turner 


CHAP.    I.]  PALMER  V.  WICK  AND  PULTENEYTOWN.  275 

was  not,  as  it  certainly  was  not,  an  unnecessary  or  officious  payment. 
We  conclude  therefore  that  the  ol)jections  we  have  been  considering 
ought  not  to  defeat  the  right  of  the  plaintiff  to  recover,  and  we  do 
not  advise  a  new  trial. 

In  this  opinion  the  other  judges  concurred. 

New  trial  not  advised. 


PALMER,    APPELLANT,   v.   WICK    ANI3    PULTENEYTOWN 
STEAM  SHIPPING  CO.,  LTD.,  RESPONDENTS. 

House  of  Lords,  1894. 

[Law  Reports,  1894,  Appeal  Cases,  318.] 

Appeal  against  a  judgment  of  the  Second  Division  of  the  Court  of 
Session,  Scotland,  reversing  a  decision  of  the  Lord  Ordinary  (Well- 
wood).^ 

This  action  was  raised  at  the  instance  of  the  Wick  and  Pulteney- 
town  Steam  Shipping  Company,  the  respondents,  against  George 
Palmer,  a  stevedore,  the  appellant,  for  payment  of  a  moiety  of  a  sum 
of  £600  awarded  jointly  and  severally  against  the  appellant  and 
respondents  as  damages  for  the  death  of  a  workman  engaged  by  the 
a))pellant  in  unloading  the  respondents'  ship,  and  also  for  half  of 
the  costs  awarded  against  them  in  the  same  terms.  These  sums  the 
respondents  had  paid  in  full  and  had  taken  an  assignation  to  the 
decrees.  This  is  a  sufficient  statement  here  of  the  facts,  as  they  are 
very  fully  given  in  the  Law  Peers'  opinions. 

Lord  Hersciiell,  L.  C.  The  question  raised  in  this  case  is  a  some- 
what novel  one.  On  the  17th  of  March,  1892,  in  two  conjoined  actions, 
in  which  Mrs.  Fowl  is  and  others  were  pursuers,  and  the  present 
appellant  and  respondents  were  the  defenders,  the  Court  of  Session 
decerned  and  ordained  the  defenders  jointly  and  severally  to  make 
payment  of  sums  amounting  to  £000.  On  the  24th  of  May,  1892,  a 
similar  decree  was  made  as  regards  the  sum  of  £239  4s.  Id.,  the 
pursuers'  costs  of  the  action.  The  pursuers,  as  they  were  entitled 
to  do,  sought'  payment  of  the  entire  sum  of  £839  4s.  Id.  from  the 
present  respondents,  who  were  by  the  decrees  made  severally  as 
well  as  jointly  liable.  The  respondents  paid  the  entire  amount, 
but  took  from  the  pursuers  an  assignation  of  the  judgment,  and 
of  the  moneys  thereby  secured.  The  respondents  thereupon  com- 
menced an  action  to  recover  one-half  of  the  amount  so  paid  by 
them  from  the  appellant.  This  action  the  appellant  maintained  was 
incompetent  on   the  ground   that   tliero   is   no  contribution   between 

'20  Court  Sess.  Cas.  41h  Sciio   (llctlio),  275. 


276  PALMER  V.  WICK  AND  PULTEXEYTOWN-,  [BOOK    II. 

wrongdoers,  that  the  judgment  had  been  satisfied,  and  that  the  assig- 
nation of  it  to  the  respondents  was  ineffectual  to  confer  on  them 
any  right  to  recover  in  this  action. 

The  first  of  the  two  conjoined  actions  was  instituted  by  Mrs. 
Fowlis  on  behalf  of  herself  and  some  of  her  children,  and  by  others 
of  her  children,  who  were  majors,  against  the  respondents,  to  recover 
damages  for  the  loss  of  her  husband  and  the  father  of  the  children, 
whose  death  was  alleged  to  have  been  due  to  the  negligence  of  the 
defenders.  His  death  was  occasioned  by  the  fall  of  a  part  of  the  tackle 
which  was  being  used  in  the  discharge  of  a  vessel  belonging  to  the 
defenders.  They  denied  the  negligence  imputed  to  them,  and  alleged 
that  if  there  had  been  any  negligence  it  was  that  of  the  appellant,  a 
stevedore  employed  to  discharge  the  ship.  The_pursuers  thereupon 
brought  an  action  against  him  also,  and  the  two  actions  were  by  order 
conjoined.  1'he  jury  found  negligence  on  the  part  of  both  the  defend- 
ers.  The  decree  of  the  17th  of  March,  to  which  allusion  has  already 
been  made,  was  the  decree  applying  this  verdict.  The  decree  of  the 
24th  of  May  related  to  the  costs. 

My  Lords,  we  have  before  us  in  the  present  action  only  the  plead- 
ings and  verdict  in  the  conjoined  actions.  It  is  at  least  consistent 
with  these  that  the  jury  may  have  found  their  verdict  of  negligence 
against ~EEe  shipping  company,  not  on  the  ground  of  nny  personal 
default  on  tJie  part  of  the  company  or  its  managers,  but  by  jeasoiLof 
some  negligence  imputable  to^he  master  of  the  vessel.  It  is  important 
to  bear  this'm  mTnd. 

The  learned  counsel  for  the  appellant  did  not  contest  the  propo- 
sition that  in  general,  where  one  of  two  co-obligants  discharges  the 
entire  debt,  he  is  entitled,  unless  there  be  some  equity  to  the  contrar}', 
to  call  for  an  assignation  of  it,  and  to  use  such  assignation  for  the 
purpose  of  enforcing  payment  of  the  share  of  his  co-obligant.  It  is  no 
answer  to  such  an  action  to  say  that  the  whole  of  the  debt  has  been 
discharged,  and  that  there  was,  therefore,  nothing  to  assign.  There 
can  be  no  doubt  that  the  decrees  of  the  17th  of  March  and  2-4 th  of 
May  created  joint  and  several  debts.  Why,  then,  should  a  co-debtor, 
who  has  paid  the  entire  sum  due,  and  received  an  assignation  (it  is 
unnecessary  to  inquire  whether  he  could  have  demanded  it),  when 
he  seeks  to  recover  the  share  of  his  co-debtor,  be  su])ject  more  than 
other  co-obligants  to  the  answer  that,  the  entire  dcl)t  having  been 
discharged,  nothing  remains  due  on  the  judgment,  and  that  it  can, 
therefore,  no  longer  be  proceeded  on  ?  The  only  answer,  as  it  seems  to 
me,  must  be  that  the  joint  debt  resulted  from  a  joint  wrong,  and  that 
the  law  will  not  permit  or  assist  any  wrongdoer  to  recover  contril)u- 
tion  from  another.  It  will  be  observed,  however,  that  this  is  to  allow 
the  defender  to  set  up*  his  own  wroiig~lry~w¥}'  ot  answer,  for  flie 
pursTi^  make"S_qut  a  prrirn  facie  ease  by  the  production  of^tlTe~jiic[g^ 
in£iilLand^  assi^ation]     HeTias~  no  need  to  rely  on  the  jomt  wrong, 


CHAP.    I.J  PALMER  V.  WICK  AND  PULTENEYTOWN.  277 

or  to  go  behind  the  judgment  and  assignation.  OiLjirinciple  I  can 
see  no  reason  why,  when  a  joint  judgment  debt  has  resulted  from  a 
joint  wrong,  each  co-debtor  .«hould  not  pay  his  share ;  or  AvKy,  if 
one  be  compelled  by  the  creditor  to  pay  the  whole  debt,  the  other 
should  be  enabled  to  go  free  by  setting  up  his  own  wrong.  Suppose 
a  settlement  were  arrived  at  before  the  case  was  tried,  and  the  wrong- 
doers gave  a  joint  and  several  bond  in  discharge  of  the  pursuer's  claim, 
can  it  be  doubted  that,  if  one  of  them  were  forced  to  pay  the  whole, 
he  could  recover  from  the  other  his  share?  Why  should  the  case  be 
different  where  the  issue  is  a  decree  that  they  shall  jointly  and 
severally  pay?  The  learned  judges  in  the  Inner  House,  differing 
from  the  Lord  Ordinar}',  have  decided  in  favour  of  the  pursuers  in  the 
present  action.  I  am  not  disposed  to  dissent  from  their  conclusion 
unless  it  can  be  clearly  shewn  to  be  contrary  to  the  established  law 
of  Scotland. 

There  is  certainly  no  express  decision  on  the  point.  The  appellant 
relied  mainly  on  a  dictum  of  Baron  Hume.  That  learned  judge 
said,  "H  is  all  unum  negotium  in  regard  to  those  who  are  so  far 
engaged  in  the  wrong  as  to  be  liable  for  the  consequences;  and  there 
is  no  principle  here,  as  in  the  case  of  cautioners  binding  for  the  same 
debt,  on  which  to  imply  any  tacit  agreement  among  them  for  mutual 
relief  or  division  of  the  loss.  Xor  is  the  law  at  all  inclined  to  dis- 
tribute the  damages  out  of  tenderness  to  the  delinquents."  The  obser- 
vation that  there  was  no  right  to  mutual  relief  was  not  in  any  way 
necessary  to  the  decision.  It  was  a  mere  dictum.  On  the  other  hand, 
Lord  Baxkton  and  Lord  Kames  have  both  indicated  views  favour- 
ing the  right  to  relief  by  a  person  bound  ex  delicto  against  his  co- 
obligant. 

It  is  not  necessary  in  this  appeal  to  decide  whether  there  can  be 
any  right  to  contribution  in  the  case  of  a  delict  proper  when  the 
liabilit}'  has  arisen  from  a  conscious  and  therefore  moral  wrong,  nor 
even  whether  in  every  case  of  quasi-delict  a  delinquent  may  obtain 
relief  against  his  co-delinquent,  though  I  see,  as  at  present  advised, 
no  reason  to  differ  from  the  opinion,  which  I  gather  my  noble  and 
learned  friend  Lord  Watsox  holds,  that  such  a  right  may  exist.  In 
circumstances  such  as  those  with  which  your  Lordships  have  to  deal, 
I  cannot  but  think  that  equity  and  justice  are  in  favour  of  the  con- 
clusion arrived  at  by  the  Inner  House,  and  there  seems  to  be  no 
authority  compelling  a  contrary  decision.  It  was  urged  that  the 
person  seeking  relief  might  be  more  culpable  of  the  delinquents;  but 
it  is  just  as  likely  that  he  should  be  the  less  culpable.  In  selecting 
from  which  of  his  co-debtors  he  will  obtain  payment,  the  creditor 
would  be  guided  usually  by  considerations  wholly  independent  of  the 
relative  culpability  of  those  from  whom  he  may  recover  it. 

;Much  reliance -was  placed  by  the  learned  counsel  for  the  appel- 
lant upon  the  judgment  in  the  English  case  of  Merrvweathcr  v.  Xixan, 


278  PALMER  V.  WICK  AND  PULTENEYTOWN.  [BOOK    II. 

8  T.  R.  186.  The  reasons  to  be  found  in  Lord  Kenyon's  judgment, 
so  far  as  reported,  are  somewhat  meagre,  and  the  statement  of  the 
facts  of  the  case  is  not  less  so.  It  is  now  too  late  to  question  that 
decision  in  this  country ;  but  when  I  am  asked  to  hold  it  to  be  part  of 
the  law  of  Scotland,  I  am  bound  to  say  that  it  does  not  appear  to  me 
to  be  founded  on  any  principle  of  justice  or  equity,  or  even  of  public 
policy,  which  justifies  its  extension  to  the  jurisprudence  of  other 
countries.  There  has  certainly  been  a  tendency  to  limit  its  applica- 
tion even  in  England.  In  the  case  of  Adamson  v.  Jarvis,  4  Bing.  66, 
Best,  C.  J.,  in  delivering  the  judgment  of  the  Court,  referred  to  the 
case  of  Philips  v.  Biggs,  Hard.  164,  which  he  said  was  never  decided; 
"but  the  Court  of  Chancery  seemed  to  consider  the  case  of  two  sheriffs 
of  Middlesex,  where  one  had  paid  the  damages  in  an  action  for  an 
escape,  and  sued  the  other  for  contribution,  as  like  the  case  of  two 
joint  obligors."  He  then  proceeded  as  follows:  "From  the  inclina- 
tion of  the  Court  in  this  last  case,  and  from  the  concluding  part  of 
Lord  Kenyon's  judgment  in  Merryweather  v.  Mxan,  8  T.  R.  186, 
and  from  reason,  justice,  and  sound  policy,  the  rule  that  wrongdoers 
cannot  have  redress  or  contribution  against  each  other  is  confined  to 
cases  where  the  person  seeking  redress  must  be  presumed  to  have 
known  that  he  was  doing  an  unlawful  act."  If  the  view  thus  ex- 
pressed by  the  Court  of  Common  Pleas  be  correct  (and  I  see  no  reason 
to  dissent  from  it),  the  doctrine  that  one  tortfeasor  cannot  recover 
from  another  is  inapplicable  to  a  case  like  that  now  under  con- 
sideration. 

For  these  reasons  I  move  your  Lordships  that  the  interlocutor 
appealed  from  be  affirmed,  and  the  appeal  dismissed  with  costs. 

Lord  Watson.^  From  these  authorities,  which  are  to  some  extent 
conflicting  and  in  other  respects  are  not  so  definite  as  one  could  wish, 
I  think  the  following  conclusions  may  be  derived.  They  are  at  vari- 
ance in  so  far  as  they  directly  relate  to  the  existence  or  non-existence 
of  a  right  of  relief  among  those  persons  who  have  incurred  civil  liabil- 
ity by  acting  together  in  the  perpetration  of  an  offence  against  the 
criminal  law.  But  it  does  not  appear  to  me  that  the  dicta  of  those 
writers  who  negative  the  existence  of  such  a  right  can  be  held  to  con- 
template every  case  of  quasi-delict,  whatever  be  its  nature.  They 
prima  facie  refer  to  proper  delicts,  and  might  ex  paritate  rationis  be 
extended  to  every  quasi-delict  which,  according  to  the  phraseology  of 
Scotch  law,  sapit  naturam  delicti ;  but  they  cannot,  in  my  opinion,  be 
fairly  read  as  referring  to  quasi-delicts  which  involve  no  moral  offence 
on  the  part  of  the  delinquent.  The  opinions  expressed  by  Lord  Presi- 
dent Inglis,  and  more  recently  by  Lord  Siiand,  point  strongly  to  that 
interpretation.  These  opinions  refer,  no  doubt,  to  persons  who  in 
their  trust  capacity  have  been  guilty  of  acts  or  omissions  injurious 

'As  Lord  Watson's  opinion  doals  with  the  Law  of  Scotland,  most  of  it  is 
oiiiittcd,  as  is  the  short  concurring  opinion  of  Lord  Siiand. — Ed. 


CHAP.    I.]  PALMER   V.    WICK   AND    PULTEXEYTOWX.  27[; 

to  the  estate  under  their  charge  and  amounting  to  quasi-delict;  hut 
it  is  obvious  that  the  exception  which  they  suggest  cannot  be  founded 
on  the  circumstance  tliat  the  co-delinquents  were  trustees,  but  must 
rest  on  the  principle  that  a  right  of  relief  exists  and  is  available  to 
a  co-delinquent  whose  acts  or  omissions  are  not  tainted  with  fraud 
or  other  moral  delinfjuency. 

1  liave  not  hitherto  noticed  the  English  case  of  Merry  weather  r. 
Nixan  (S  T.  \l.  18G).  Assuming  it  to  be  an  authority  establishing 
the  guneral  rule  for  which  the  appellant  contends — a  proposition 
which  seems  to  admit  of  doubt — I  can  only  regard  it  as  a  positive 
rule  of  the  common  law  of  England,  which  is  inconsistent  with,  and 
ought  not  to  override,  the  law  and  practice  of  Scotland  The  merits 
of  the  rule  are  not,  in  my  opinion,  such  as  to  commend  it  to  universal 
acceptation. 

Lord  Halsbuuy.  I  concur  with  the  proposition  that  the  case  of 
Merryweather  r.  Xixan,  8  T.  R.  186,  has  been  so  long  and  so  uni- 
versally acknowledged  as  part  of  the  English  law  that  even  if  one's 
own  judgment  did  not  concur  with  its  principle  it  would  be  now  too 
late  to  question  its  applicability  to  all  cases  in  England  governed  by 
the  principle  therein  enunciated ;  but  I  am  not  prepared  to  differ  from 
the  views  entertained  by  the  Lord  Chancellor  and  my  noble  and 
learned  friend  Lord  Watsox  when  dealing  with  the  jurisprudence  of 
Scotland. 

The  difficulty  which  has  arisen  is,  I  think,  one  of  words.  The 
word  "tort"  in  English  law  is  not  always  used  with  strict  logical 
precision.  The  same  act  may  sometimes  be  treated  as  a  breach  of 
contract  and  sometimes  as  a  tort.  But  "tort"  in  its  strictest  meaning, 
as  it  seems  to  me,  ought  to  exclude  the  right  of  contribution  which 
would  imply  a  personal  contract  to  subscribe  towards  the  commission 
of  a  wrong.  It  seems  to  me,  therefore,  that  the  distinction  between 
classes  of  torts  or  quasi-delicts  and  delicts  proper  is  reasonable  and 
just,  though  I  doubt  whether  in  dealing  with  an  English  case  one 
would  be  at  liberty  to  adopt  such  a  distinction.  It  becomes  unneces- 
sary to  consider  the  form  of  the  suit;  but  I  think  that  in  England 
the  transmutation  of  the  cause  of  action  into  a  judgment  would  not 
prevent  the  application  of  the  principle  of  Merryweather  v.  Nixan, 
8  T.  K.  186. 

Interlocutor  appealed  from  affirmed,  and  appeal 
dismissed  with  costs.^ 

'On  this  whole  subject  see  an  excellent  article  by  Theodore  W.  Reath  in 
12  Harv.  Law  Rev.  170-194,  where  English  and  American  cases  are  cited  and 
discussed. 

See  also,  Cooley  on  Torts  (2d  ed.)   170-172.— Ed. 


280  crumlish's  adm'k  v.  cent.  imp.  co.  [bookii. 

SECTION    III. 

The  Defendant  has  Eeceived  a  Benefit  at  the  Plaintiff's. 

Hand. 

1.  the  benefit  was  conferred  without  request. 

(a)  Plaintiff  Intended  to  Benefit  Defendant. 

GEYMES  V.  BLOFIELD. 

Trinity.    King's  Bench,  1594. 

[Crol-e's  Elizabeth,  541.] 

Debt  upon  an  obligation  of  twenty  pounds.  The  defendant  pleads, 
that  J.  S.  surrendered  a  copyhold  tenement  to  the  use  of  the  plaintiff 
in  satisfaction  of  that  twenty  pounds,  which  the  plaintiff  accepted.  It 
was  thereupon  demurred. — Popham  and  Gawdy  held  it  to  be  no  plea ; 
for  J.  S.  is  a  mere  stranger,  and  in  no  sort  privy  to  the  condition  of 
the  obligation;  and  therefore  satisfaction  given  by  him  is  not  good. 
Vide  36  Hen.  6;  "Bar,"  166;  7  Hen.  4,  pi.  31.— Afterwards,  in  Easter 
Term,  31  Eliz.  by  Popham  and  Clench,  cceteris  Justiciariis  ahsenti- 
bus,  it  was  adjudged  for  the  plaintiff. 


Crumlish's  Adm'r  v.  Cent.  Imp.  Co.  (1893),  38  W.  Va.  390,  395, 
397,  per  Brannon^  J. : 

But  this  payment  was  made  by  a  stranger,  without  request  or 
ratification  by  the  debtor,  so  far  as  appears.  Does  it  satisfy  the 
judgment  ?  As  it  seems  to  me,  the  answer  depends  upon  whether  you 
mean  as  to  the  creditor  or  debtor.  It  remains  a  correct  legal  propo- 
sition to  the  present,  that  one  man,  who  is  under  no  obligation  to  pay 
the  debt  of  another,  can  not  without  his  request  officiously  pay  that 
other's  debt  and  charge  him  with  it.  If_^he  debtor  ratify  such  pay^ 
ment,  the  debris  discharged^and  be  bei3onieslia_ble_±Q J;he_straiiger 
far  moiiey^iid  to  hisjuse.  If  he  refuse  to  ratify  it,  he  disclaimsthc 
payment  and  tlio  debt  stands  unpaid  as  to  him.  In  the  one  case  the 
sfFanger  would  at  law  sue  the  debtor  for  money  paid  to  his  use;  in 
the  other  enforce  the  debt  in  the  creditor's  name  for  his  use.  If  his 
payment  is  not  ratified,  he  may  go  into  equity  praying  that,  if  the 
debtor  ratify  it  said  debtor  may  be  decreed  to  repay  him,  or,  if 
the  debtor  do  not  ratify  the  payment,  that  the  debt  be  treated  as 


CHAP.    I.]  CRUMLISII'S  ADM'r  V.   CENT.   IMP.   CO.  281 

unpaid  as  between  him  and  the  debtor,  and  that  it  be  enforced  in  his 
favor  as  an  equitable  assignee.  Neely  v.  Jones,  16  \V.  Va.  625;  Moore 
V.  Ligon,  32  W.  Va.  292;  Beard  v.  Arbuckle,  19  W.  Va.  133. 

But  how  as  to  the  creditor?  When  a  stranger  pays  him  the  debt 
of  a  third  party  without  the  request  of  such  third  party,  as  in  this 
case,  can  the  creditor  say  the  debt  is  yet  unpaid  and  enforce  it 
against  the  debtor,  as  is  attempted  to  be  done  by  Jamison  &  Co.  ? 
Can  he  accept  such  payment  and  say,  because  it  was  made  by  a 
stranger,  it  is  no  payment?  Is  his  acceptance  not  an  estoppel  by  con- 
duet  in  pais,  as  to  him  ? 

There  has  been  a  difference  of  opinion  in  this  matter.  The  old 
English  case  of  Grymes  v.  Blofield,  Cro.  Eliz.  541  (decided  in  Eliza- 
beth's reign)  is  the  parent  of  the  casesjiolding  that  even  the  creditor 
accejiting  payment  from  a  stranger  may  repudiate,  and  still  enforce 
his  demand  as  unpaid.  That  case  is  said  to  have  decided  that  a  plea 
of^ccord  and  satTsfacTion  by  a  stranger  is  not  good,  while  Rolle.  Abr. 
471  (condition  F.)  says  it  was  decided  just  the  other  way.  Dexman, 
C.  J.  questioned  its  authority  in  Thurman  v.  Wild,  39  E.  C.  L.  145. 
Opposite  holding  has  been  made  in  England  in  Hawkshaw  v.  Rawlings, 
1  Strange,  24.  Its  authority  is  questioned  at  the  close  of  the  opinion 
by  Cresswell,  J.,  in  Jones  v.  Broadhurst,  67  E.  C.  L.  197,  as  contrary 
to  an  ancient  decision  in  36  Hen.  VI.  and  against  reason  and  justice. 
Parke,  B.,  seemed  to  think  it  law  in  Simpson  v.  Eggington,  10  Exch. 
845.  It  was  followed  in  Edgcombe  v.  Eodd.  5  East.  294,  and  Stark 
V.  Thompson,  3  T.  B.  Mon.  296.  Lord  Coke  held  the  satisfaction 
good.  Co.  Litt.  206b,  207a.  See  5  Reb.  Pr.  (New)  884;  7  Eob.  Pr. 
(New)  548.  The  cases  of  Goodwin  v.  Cremer,  83  E.  C.  L.  757,  and 
Kemp  V.  Balls,  28  Eng.  Law  &  Eq.  498,  seem  to  hold  that  payment 
must  be  made  by  a  third  person  as  agent  for  and  on  account  of  debtor 
was  his  assent  or  ratification.  In  New  York  old  cases  held  this  doc- 
trine. Clow  V.  Borst,  6  Johns,  37;  Bleakley  v.  White,  4  Paige,  654. 
But  later,  in  Wellington  v.  Kelly,.  84  N.  Y.  543,  Andrews,  J.,  said 
that  the  old  cases  were  doubtful,  but  had  not  been  overruled,  but  it 
was  not  necessary  in  that  case  to  say  whether  it  should  longer  be  re- 
garded as  law,  and  the  syllabus  makes  a  qucere  on  the  point.  It  was 
held  in  Harrison  v.  Hicks,  1  Port.  (Ala.)  423,  that  "payment  of  a 
debt,  though  made  by  one  not  a  party  to  the  contract,  and  though  the 
assent  of  the  debtor  to  the  payment  does  not  appear,  is  still  the  ex- 
tinguishment of  the  demand."  The  opinion  says  that,  as  between  the 
person  paying  and  him  for  wdiose  benefit  it  was  paid,  a  question 
might  arise  whether  it  was  voluntary,  which  would  depend  on  cir- 
cumstances of  previous  request  or  subsequent  express  or  implied. 
This  doctrine  is  sustained  bv  Martin  v.  Quinn.  37  Cal.  55  ;  Gray  v. 
Herman,  75  Wis.  453  (44  N."w.  Rep.  248)  ;  Cain  v.  Bryant,  15  Heisk. 
45;  Leavitt  v.  Morrow,  6  Ohio  St.  71;  Webster  v.  Wvser,  1  Stew. 
(Ala.)   184;  Harvey  v.  Tama  Co.,  53  la.  228  (5  N.  W.  Rep.  130). 


282  crumlish's  adm'r  v.  cent.  imp.  co.  [book  ii. 

Bish.  Cont.  §  811,  holds  that,  if  payment  "be  accepted  by  creditor  in 
discharge  of  debt,  it  has  that  effect."     Sec.  2  Whart.  Cont.  §  1008. 

It  seems  utterly  unjust  and  repugnant  to  reason,  that  a  creditor 
accepting  payment  from  a  stranger  of  tlie  third  person's  debt  should 
be  allowed  to  maintain  an  action  against  the  debtor  pleading  and 
thereby  ratifying  such  payment,  on  the  technical  theory  that  he  is 
a  stranger  to  the  contract.  The  creditor  has  himself  for  this  purpose 
allowed  him  to  make  himself  a  quasi  party,  and  consents  to  treat 
him  so,  so  far  as  payment  is  concerned.  To  regard  the  debt  paid,  so 
far  as  he  is  concerned,  is  but  to  hold  him  to  the  result  of  his  own  act. 
Shall  he  collect  the  debt  again  ?  In  that  case  can  the  stranger  re- 
cover back?  What  matters  it  to  the  creditor  who  pays?  As  the 
Supreme  Courts  of  ^yisconsin  and  Ohio  in  cases  above  cited  said,  this 
doctrine  is  against  common  sense  and  Justice.  It  does  not  at  all  in- 
fringe the  rule  that  one  can  not  at  law  make  another  his  debtor  with- 
out request  to  allow  such  payment  to  satisfy  the  debt  as  to  the  cred- 
itor ;  and  this  Court,  while  recognizing  the  rule  that  one  can  not  offi- 
ciously pay  the  debt  of  another  and  sue  him  at  law,  unless  he  has 
ratified  it,  by  allowing  the  stranger  to  go  into  equity  and  get  repay- 
ment makes  the  payment  in  the  eyes  of  a  court  of  equity  operate  to 
satisfy  the  creditor,  and  render  the  stranger  a  creditor  of  the  debtor, 
Neeley  v.  Jones,  16  W.  Va.  625.  I  know  that  in  that  case  it  is  held 
that,  "if  a  payment  by  a  stranger  is  neither  ratified  nor  authorized 
by  the  debtor,  it  will  not  be  held  to  be  a  discharge  of  the  debt ;"  but, 
though  this  point  is  general,  that  was  a  case  of  the  stranger  seeking 
to  make  the  debtor  repay,  and  the  case  and  opinion  intended  to  lay 
down  the  rule  at  law  only  as  between  the  stranger  paying  and  the 
debtor,  not  as  between  the  creditor  and  debtor.  So  I  hold  that,  when 
Jamison  &  Co.  received  the  money  for  this  judgment,  it  operated  as 
a  discharge  as  to  them.^ 

'Accord:  Wolff  v.  Matthews  (1889)  39  Mo.  App.  376.  Contra:  Thomson  v. 
Thomson   (1902)   78  N.  Y.  Supp.  389. 

The  principal  case  leaves  unquestioned  the  doctrine  that  an  officious  inter- 
meddler  acquires  nothing  for  his  pains.  The  following  is  an  early  statement 
of  the  principle:  "If  one  become  my  bayliff  of  his  own  wrong,  without  my 
appointment,  he  is  aecompetable  to  me,  but  I  am  not  compeliable  to  make  him 
any  allowance  for  his  expenses  about  my  business."  Gawton  and  the  Lord 
Dacres  Case   (1591)    1  Leon.  219.— Ed. 


CHAP.   I.]  PICKSLAY   V.   STARR,  283 

SIR  JOHN  ROBINSON  v.  GUMMING. 

High  Court  of  Chaxcery,  1742. 

[2  Atkyns,  409.] 

It  came  before  the  Chancellor  upon  exceptions  to  a  Master's  re- 
port, who  had  allowed  the  defendant  £120  the  value  of  presents  he  had 
made  formerly  to  the  plaintiff's  wife. 

The  case  which  the  defendant  makes  is  this,  that  he  being  a  par- 
ticular friend  of  Mr.  Sheffield's,  the  grandfather  of  Mrs.  Robinson, 
who  was  about  sixteen  at  the  time  of  his  death,  had  made  her  several 
valuable  presents;  and  that  Mr.  Sheffield  by  his  will  has  expressly 
devised  his  whole  estate  to  the  defendant,  in  case  he  should  marry  his 
granddaughter,  which  shews  that  he  approved  of  the  match,  and  had 
likewise  made  him  executor. 

The  plaintiff  insists,  that  the  defendant  had  insinuated  himself  too 
much  into  the  favour  of  this  old  man,  and  that  the  young  lady  had 
never  given  him  the  least  encouragement,  as  his  circumstances  were 
by  no  means  equal  to  hers,  she  being  a  very  great  fortune,  and  he 
having  only  £100  per  an.  at  most. 

Lord  Chancellor  [Hardwicke], 

I  think,  in  cases  of  this  nature,  these  rules  may  be  laid  down.  That 
if  a  person  has  made  his  addresses  to  a  lady  for  some  time,  upon  a 
view  of  marriage,  and,  upon  a  reasonable  expectation  of  success,  makes 
presents  to  a  considerable  value,  and  she  thinks  proper  to  deceive  him 
afterwards,  it  is  very  right  that  the  presents  themselves  should  be 
returned,  or  the  value  of  them  allowed  to  him :  but,  where  presents 
are  made  only  to  introduce  a  person  to  a  woman's  acquaintance,  and 
by  means  thereof  to  gain  her  favour,  I  look  upon  such  person  only  in 
the  light  of  an  adventurer,  especially  where  there  is  a  disproportion 
between  the  lady's  fortune  and  his,  and  therefore,  like  all  other  ad- 
venturers, if  he  will  run  risques,  and  loses  by  the  attempt,  he  must 
take  it  for  his  pains:  the  defendant's  case,  upon  all  the  circumstances, 
being  a  good  deal  of  this  sort,  I  am  of  opinion  the  Master  ought  not 
to  have  allowed  him  the  value  of  the  presents;  and  therefore  the  plain- 
tiff is  right  in  the  exception. 

There  were  other  exceptions  in  the  same  cause. 


Ix  PicTcslay  v.  Starr  (1894)  27  N.  Y.  Supp.  GIG.  the  referee  said: 

A  gift  is  defined  to  be  "a  voluntary  transfer  of  his  property  by  one 

to  another,  without  any  consideration  or  compensation  therefor.     To 


284  PICKSLAY  I'.  STARR.  [BOOK  II. 

make  it  valid,  the  transfer  must  be  executed,  for  the  reason  that, 
there  being  no  consideration  therefor,  no  action  will  lie  to  enforce  it." 
Gray  v.  Barton,  55  N".  Y.  72.  The  proofs  in  the  present  case  show 
conclusively,  as  it  seems  to  me,  that  the  defendant's  plain  intention, 
Avhen  he  delivered  the  $3,500  check  to  the  plaintiff,  was  to  make  the 
plaintiff  the  usual  Christmas  gift.  It  certainly  was  not  delivered  as 
a  payment  on  account  of  the  plaintiff's  salary,  or  on  account  of  any  in- 
debtedness due  to  him  from  the  defendant.  The  plaintiff  did  not 
ask  for  it.  The  delivery  of  it  was  a  purely  voluntary  act  on  the  part 
of  the  defendant,  and  when,  a  couple  of  days  later,  the  plaintiff 
thanked  him  for  the  "present,"  and  also  for  his  "present"  to  Mrs. 
Pickslay,  the  defendant  said  that  he  was  glad  that  they  were  pleased. 
The  act  that  the  defendant  did  he  would  not  have  done  had  he  at 
that  time  remembered  the  new  agreement  with  the  plaintiff,  by  which 
the  plaintiff's  salary  had  been  substantially  increased;  but  it  was 
exactly  what  he  intended  to  do.  The  check  was  drawn  by  him,  or  by 
his  direction,  that  it  might  be  given  to  the  plaintiff  as  a  Christmas 
gift.  It  was  so  given.  The  defendant  says:  "Having  been  in  the 
habit  of  doing  that  for  six  years  previously,  I  did  it  that  time." 
And  he  cannot  now  be  permitted  to  avoid  the  legal  consequences  of  his 
voluntary  and  intentional  act,  on  the  ground  that  he  did  it  by  mistake, 
not  recollecting  facts  which,  had  they  been  in  his  mind,  would  have 
deterred  him  from  doing  as  he  did. 

Pratt,  J.  The  important  question  is  whether  the  $2,500  check  re- 
ceived by  plaintiff  from  defendant  the  day  before  Christmas,  1889, 
was  a  gift,  or  whether  it  was  an  advance  on  account  of  plaintiff's 
salary.  The  referee  has  found  it  to  be  a  gift,  and  we  do  not  see  how 
he  could  reasonably  have  decided  otherwise.  The  referee's  opinion 
discusses  the  matter  so  fully  that  there  is  no  need  to  pursue  the  argu- 
ment further.  The  suggestion  that  a  check  cannot  be  a  valid  gift 
has  no  weight.  It  may  well  be  that,  had  the  maker  of  the  check 
stopped  its  payment,  an  action  against  the  maker  could  not  have  been 
maintained.  But,  after  the  money  was  paid,  the  transaction  could 
not  be  revoked ;  the  gift  was  complete.  That  is  to  say,  although  the 
gift  of  the  check  might  not  be  binding  and  irrevocable,  the  check  was 
the  means  and  instrument  by  which  the  gift  of  money  was  effected. 
Judgment  affirmed,  with  costs. 

CuLLRN,  J.  I  concur,  on  the  ground  that  if  the  defendant  made 
the  present  under  mistake,  or  forgetting  that  plaintiff's  salary  had 
been  increased,  he  should,  upon  discovering  the  error,  have  disap- 
proved the  transaction  and  notified  the  plaintiff.^ 

'And  see  Davis  v.  Ford  (1833)  Wright,  200;  Kershaw  Co.  v.  Town  of 
Camden  (1890)  33  S.  C.  140.— Ed. 


CHAP.    I.]       STOKES  AND  ANOTHER  V.  LEWIS  AND  ANOTHER.  285 


STOKES  AND  ANOTHER,  OVERSEERS  OF  ST.  VEDAST'S, 
OTHERWISE  FOSTER  v.  LEWIS  AND  ANOTHER,  OVER- 
SEERS OF  ST.  MICHAEL  LE  QUERN. 

Michaelmas^  King's  Bench,  1785. 

[1  Term  Reports,  20.] 

This  was  an  action  for  money  paid,  laid  out,  and  expended,  by  the 
plaintiffs  to  the  use  of  the  defendants. 

The  question  arose  upon  the  payment  of  a  sexton's  salary.  At  the 
trial,  which  came  on  before  Lord  Mansfield  at  the  last  sittings  in 
London,  it  appeared  that  by  the  act  22  and  23  Car.  2.  c.  11,  which  was 
an  additional  act  for  rebuilding  the  city  of  London  after  the  great 
fire,  and  uniting  parishes,  etc.,  amongst  others  the  parishes  of  St. 
Vedast's  and  St.  Michael  le  Querne  were  united;  and  that  since  that 
time  one  set  of  officers  had  served  for  the  two  parishes,  the  election 
of  whom  had  always  been  made  at  a  joint  vestry.  That  only  nine 
vacancies  in  the  office  of  sexton  had  happened  since,  all  of  which  had 
been  filled  up  agreeably  to  this  custom.  That  in  the  year  1759,  the 
sexton's  salary  was  fixed  at  £20  per  annum,  which  was  agreed  to  be 
paid  equally  by  both  parishes.  That  the  overseers  of  St.  Vedast's  had 
paid  the  sexton  who  was  last  chosen  the  whole  sum;  to  recover  a 
moiety  of  which  this  action  was  brought. 

The  defence  set  up  was,  that  the  last  election  of  a  sexton  was  not  a 
joint  one;  and  that  the  parish  of  St.  Michael  claimed  a  right  of 
choosing  a  separate  sexton  for  themselves,  of  which  they  had  given 
notice  to   the   other  parish. 

Lord  Mansfield,  at  the  trial,  being  of  opinion  that  this  action  did 
not  lie,  nonsuited  the  plaintiffs. 

Ersl-ine,  Mingay,  and  Laiv,  showed  cause  against  a  motion  which 
Sir  Thomas  Davenport  had  made  for  a  new  trial. 

One  of  the  first  principles  of  law  is,  that  an  assumpsit  cannot  be 
raised  by  paying  the  debt  of  another  against  his  will.  The  present 
plaintiffs  have  here  paid  this  money  in  their  own  wrong,  after  notice 
from  the  other  parish  that  they  meant  to  dispute  the  right,  and  to 
elect  a  sexton  of  their  own.  If  any  party  was  aggrieved  here  it  was 
the  sexton,  and  he  might  have  brought  his  action  against  the  parish 
who  refused  to  pay  their  quota. 

Sir  Thomas  Davenport,  Beorcroft,  and  Chamhrr,  in  support  of  the 
rule,  said  that  they  had  offered  to  give  evidence  that  a  joint  vestry  did 
meet  on  the  17th  February.  1784,  when  the  sexton  was  chosen,  after 
the  notice  on  the  11th  that  the  other  parish  would  not  meet.  There- 
fore, although  there  was  notice  that  they  would  not  meet,  yet  if  they 


286  NICHOLSON   V.    CHAPMAN.  [bOOK    II. 

did  actually  meet,  the  court  would  not  consider  now  whether  the  meet- 
ing was  perfectly  formal  and  regular;  that  was  a  proper  circumstance 
for  the  jury  to  decide.  If  there  is  a  joint  obligation  to  pay  a  debt,  one 
party  may  pay  the  whole,  and  bring  an  action  for  the  moiety,  even 
with  the  dissent  of  the  other  party.  Whether  this  was  a  joint  obliga- 
tion should  also  have  been  left  to  the  jury. 

Lord  Mansfield^  C.  J.  All  the  argument  is  beside  the  question. 
The  merits  of  this  election  are  not  material  here,  and  the  validity  of 
the  meeting  on  the  17th  is  not  to  the  purpose.  The  facts  that  gave 
rise  to  the  question  are  not  disputed :  the  dispute  arises  concerning 
the  election  of  a  sexton,  and  the  way  of  trying  it  is  by  refusing  to  pay 
the  sexton  elected ;  the  whole  is  notoriously  in  litigation.  Under  these 
circumstances,  therefore,  one  parish  paid  the  quota  of  the  other  in 
spite  of  their  teeth;  then  can  it  be  said,  that  this  action  for  money 
paid,  laid  out,  and  expended,  will  lie?  Certainly  not.  This  action 
must  be  grounded  either  on  an  express  or  implied  consent:  here  is 
neither.  Another  strong  objection  to  this  action  is,  that  it  is  trying 
the  right  of  the  sexton  without  his  being  a  party  to  it. 

WiLLES^  and  Ashhurst,  Justices,  concurred. 

BuLLER,  J.  If  this  were  held  to  be  a  joint  obligation,  it  would  be 
saying  that  the  sexton  might  bring  his  action  against  one  of  the 
parishes  for  the  whole  sum:  which  is  not  the  case. 

Rule  discharged.'^ 


NICHOLSON  V.  CHAPMAN. 

Michaelmas,  Common  Pleas^  1793. 

[3  Henry  Blackstone,  254.] 

A  quantity  of  timber  belonging  to  the  plaintiff  was  placed  in  a 
dock  on  the  bank  of  a  navigable  river.  The  timber  was  accidentally 
loosened,  carried  by  the  tide  to  a  considerable  distance,  and  left 
at  low  water  upon  a  towing-path.  The  defendant  found  it  in  that 
situation  and  voluntarily  conveyed  it  to  a  place  of  safety  beyond 
the  reach  of  the  tide  at  high  water.  Nicholson  made  a  demand 
upon  Chapman  for  its  delivery,  but  this  the  latter  refused  to 
ilo  unless  compensated  for  his  services  in  saving  and  keeping  the 
timber.^ 

On  this  day,  after  consideration,  the  opinion  of  the  Court  was 
thus  delivered  by 

Lord  Chief  Justice  Eyre.     Tlie  only  difficulty  that  remained  with 

'Accord:    Mulligan  v.  Kenny    (1882)    .34  La.   Ann.   50.— Ed. 
^Short  statement  substituted  for  that  of  the  Reporter. — Ed. 


CHAP.    I.]  NICHOLSON  V.   CHAPMAN.  287 

any  of  us,  after  we  had  heard  this  case  argued,  was  upon  tlie  question, 
whether  this  transaction  could  be  assiniihited  to  salvage?  The  taking 
care  of  goods  left  by  the  tide  upon  the  banks  of  a  navigable  river, 
communicating  with  the  sea,  may  in  a  vulgar  sense  be  said  to  be  sal- 
vage, but  it  has  none  of  the  qualities  of  salvage,  in  respect  of  which  the 
laws  of  all  civilized  nations,  the  laws  of  Oleron,  and  our  own  laws  in 
particular,  have  provided  that  a  recompence  is  due  for  the  saving, 
and  that  our  law  has  also  provided  that  this  recompence  should  be  a 
lien  upon  the  goods,  which  have  been  saved.  Goods  carried  by  sea, 
are  necessarily  and  unavoidably  exposed  to  the  perils  which  storms, 
tempests  and  accidents,  (far  beyond  the  reach  of  human  foresight  to 
prevent)  are  hourly  creating,  and  against  which,  it  too  often  happens, 
that  the  greatest  diligence  and  the  most  strenuous  exertions  of  the 
mariner  cannot  protect  them.  When  goods  are  thus  in  imminent 
danger  of  being  lost,  it  is  most  frequently  at  the  hazard  of  the  lives 
of  those  who  save  them,  that  they  are  saved.  Principles  of  public 
policy  dictate  to  civilized  and'  commercial  countries,  not  only  the 
propriety,  but  even  the  absolute  necessity  of  establishing  a  liberal 
recompence,  for  the  encouragement  of  those  who  engage  in  so  danger- 
ous a  service. 

Such  are  the  grounds,  upon  which  salvage  stands ;  they  are  recog- 
nized by  Lord  Chief  Justice  Holt,  in  the  case  which  has  been  cited 
from  Raymond,  and  Salkeld,  1  Ld.  Raym.  393 ;  Salk.  654,  pi.  2.  But 
see  how  very  unlike  this  salvage  is,  to  the  case  now  under  consideration. 
In  a  navigable  river  within  the  flux  and  reflux  of  the  tide,  but  at  a 
great  distance  from  the  sea,  pieces  of  timber  lie  moored  together  in 
convenient  places;  carelessness,  a  slight  accident,  perhaps  a  mis- 
chievous boy.  casts  off  the  mooring  rope,  and  the  timber  floats  from  the 
place  where  it  was  deposited,  till  the  tide  falls,  and  leaves  it  again 
somewhere  upon  the  banks  of  the  river.  Such  an  event  as  this,  gives 
the  owner  the  trouble  of  employing  a  man,  sometimes  for  an  hour, 
and  sometimes  for  a  day,  in  looking  after  it,  till  he  finds  it,  and  brings 
it  back  again  to  the  place  from  whence  it  floated.  If  it  happens  to 
do  any  damage,  the  owner  must  pay  for  that  damage ;  it  will  be  im- 
putable to  him  as  carelessness,  that  his  timber  in  floating  from  its 
mooring  is  found  damage  feasant,  if  that  should  happen  to  be  the 
case.  But  this  is  not  a  case  of  damage  feasance;  the  timber  is  found 
lying  upon  the  banks  of  the  river,  and  is  taken  into  the  possession, 
and  under  the  care  of  the  Defendant,  without  any  extraordinary  ex- 
ertions, without  the  least  personal  risque,  and,  in  truth,  with  very  little 
trouble.  It  is  therefore  a  case  of  mere  finding,  and  taking  care  of  the 
thing  found,  (I  am  willing  to  agree)  for  the  owner.  This  is  a  good 
office,  and  meritorious,  at  least  in  the  moral  sense  of  the  word,  and 
certainly  intitles  the  party  to  some  reasonable  recompence  from  the 
bounty,  if  not  from  the  justice  of  the  owner;  and  of  which,  if  it  were 
refused,  a  court  of  justice  would  go  as  far  as  it  could  go,  towards 


288  NICHOLSON   V.   CHAPMAN.  [BOOK   II. 

enforcing  the  payment.*  So  it  would,  if  a  horse  had  strayed,  and  was 
not  taken  as  an  estray  by  the  lord  under  his  manerial  rights,  but  was 
taken  up  by  some  good-natured  man  and  taken  care  of  by  him,  till 
at  some  trouble,  and  perhaps  at  some  expence,  he  had  found  out  the 
o^\Tier.-  So  it  would  be  in  every  other  case  of  finding,  that  can  be 
stated,  (the  claim  to  the  recompence  diifering  in  degree,  but  not  in 
principle;)  which  therefore  reduces  the  merits  of  this  case  to  this 
short  question,  whether  every  man  who  finds  the  property  of  another, 
which  happens  to  have  been  lost,  or  mislaid,  and  voluntarily  puts 
himself  to  some  trouble  and  expence,  to  preserve  the  thing,  and  to 
find  out  the  owner,  has  a  lien  upon  it  for  the  casual,  fluctuating,  and 
uncertain  amount  of  the  recompence,  which  he  may  reasonably  de- 
serve? It  is  enough  to  say,  that  there  is  no  instance  of  such  a  lien 
having  been  claimed  and  allowed ;  the  ease  of  the  pointer  dog,  2  Black, 
1117,  was  a  case  in  which  it  was  claimed  and  disallowed,  and  it  was 
thought  too  clear  a  case  to  bear  an  argument.  Principles  of  public 
policy  and  commercial  necessity,  support  the  lien  in  the  ease  of 
salvage.  Not  only  public  policy  and  commercial  necessity,  do  not 
require  that  it  should  be  established  in  this  case,  but  very  great  in- 
convenience may  be  apprehended  from  it,  if  it  were  to  be  established. 
The  owners  of  this  kind  of  property,  and  the  owners  of  craft  upon  the 
river,  which  lie  in  many  places  moored  together  in  large  numbers, 
would  not  only  have  common  accidents  from  the  carelessness  of  their 
servants  to  guard  against,  but  also  the  wilful  attempts  of  ill  designing 
people  to  turn  their  floats  and  vessels  adrift,  in  order  that  they  might 
be  paid  for  finding  them.  I  mentioned  in  the  course  of  the  cause, 
another  great  inconvenience,  namely,  the  situation,  in  which  an  owner 
seeking  to  recover  his  property  in  an  action  of  trover  will  be  ]ilaced, 
if  he  is  at  his  peril  to  make  a  tender  of  a  sufficient  recompence,  before 
he  brings  his  action:  such  an  owner  must  always  pay  too  much,  be- 
cause he  has  no  means  of  knowing  exactly  how  much  he  ought  to  pay, 
and  because  he  must  tender  enough.  I  know  there  are  cases  in  which 
the  owner  of  property  must  submit  to  this  inconvenience;  but  the 

^It  seems  probable,  that  in  such  a  case,  if  any  action  could  be  maintained, 
it  would  be  an  action  of  assumpsit  for  work  and  labour,  in  which  the  Court 
would  imply  a  special  instance  and  request,  as  well  as  a  promise.  On  a 
quantum  meruit,  the  reasonable  extent  of  the  recompence  would  come  properly 
before  a  jury.    Reporter's  note. — Ed. 

^To  the  4th  edition  of  H.  Blaekstone's  reports  the  following  note  is  ap- 
pended: "It  is,  however,  laid  down  that  a  mere  voluntary  courtesy  Avill  not 
support  an  assumpsit.  Lampleigh  v.  Braithwaite,  Hob.  105;  and  see  the  Re- 
porter's note,  3  Bos.  &  Pul.  251;  1  Saund.  2G4  (n),  5th  ed.  .  .  .  According 
to  the  civil  law,  the  party  is  allowed  to  recover.  See  Wood's  Institute,  256;  and 
see  Bull.  N.  P.  45.  Whether  the  finder  of  goods  is  bound  to  take  them  into 
his  possession,  or  if  taken  into  his  possession  to  keep  them  safely,  see  Isaak  v. 
Clark,  2  Bulstr.  312;  Mulgrove  v.  Ogden,  Cro.  Eliz.  219.— Ed. 


CHAP.    I.]  EEEDER    V.    AXDEKSON'S   ADM'RS.  289 

iiuiiiljcr  of  tlu'in  ou^^iit  not  to  be  increased;  perhaps  it  is  better  for  the 
l)ublie,  that  these  voluntary  acts  of  benevolence  from  one  man  to  an- 
other, which  are  charities  and  moral  duties,  but  not  legal  duties, 
should  depend  altogether  for  their  reward,  upon  the  moral  duty  of 
gratitude.  But  at  any  rate,  it  is  fitting  that  he  who  claims  the  reward 
in  such  case,  should  take  upon  himself  the  burthen  of  proving  the 
nature  of  the  service  which  he  has  performed,  and  the  quantum  of  the 
recompence  which  he  demands,  instead  of  throwing  it  upon  the  owner 
to  estimate  it  for  him,  at  the  hazard  of  being  non-suited  in  an  action 
of  trover. 

Judgment  for  the  Plaintiff.* 


Reeder  v.  Anderson's  Administrators. — x^ssumpsit  (1836),  4  Dana, 
193. 

Opinion  of  the  court,  by  Chief  Justice  Eobertson. 

The  only  question  to  be  considered  in  this  case  is,  whether  the  law 
will  imply  a  promise,  by  the  owner  of  a  runaway  slave,  to  pay  a 
reasonable  compensation  to  a  stranger  for  a  voluntary  apprehension 
and  restitution  of  the  fugitive.  And,  though  such  friendly  offices  are 
frequently  those  only  of  good  neighborship,  which  should  not  be  influ- 
enced by  mercenary  motives  or  expectations — nevertheless,  it  seems 
to  us  that  there  is  an  implied  request  from  the  owner,  to  all  other 
persons  to  endeavor  to  secure  to  him  lost  property  which  he  is 
anxious  to  retrieve;  and  that,  therefore,  there  should  be  an  implied 
undertaking  to  (at  least)  indemnify  any  person  who  shall,  by  the 
expenditure  of  time  or  money,  contribute  to  a  reclamation  of  the  lost 
property. 

Whether,  according  to  the  proof,  there  was  any  such  claim  to 
reparation  or  indemnity  in  this  case,  is  very  doubtful ;  but,  because  it 
is  doubtful,  the  circuit  court  erred  in  instructing  the  jury  to  find  as  in 
case  of  a  non-suit. 

'Chase  v.  Corcoran  (1871)  lOG  Mass.  286,  was  decided,  it  would  seem,  upon 
the  authority  of  the  principal  case.  In  the  former  ease,  it  appeared  that  a 
boat  was  adrift;  that  it  was  taken  possession  of  by  plaintiff,  who  expended 
labor  and  money  in  its  repair  and  preservation.  Held  that  owner  of  boat 
was  liable  in  assumpsit  for  such  necessary  repairs  and  expenses. 

The  court  said:  "We  are  of  opinion  that  such  a  promise  is  to  be  implied.  The 
plaintiff,  as  the  finder  of  the  boat,  had  the  lawful  possession  of  it.  and  the  riiirht 
to  do  what  was  necessary  for  its  preservation.  Whatever  might  have  been  the 
liability  ot  the  owner  if  lie  had  chosen  to  let  the  finder  retain  the  boat,  by 
taking  it  from  him  he  made  himself  liable  to  pay  the  reasonable  expenses 
incurred  in  keeping  and  repairing  it.  Nicholson  i'.  Chapman,  2  H.  Bl.  254,  258 
and  note;  Amory  v.  Flyn,  10  Johns.  102;  Tome  r.  Four  Cribs  of  Lumber, 
Taney,  533,  547;  3  Dane  Ab.  143;  Story  on  Bailments,  §§  121  a,  621  a;  2  Kent 
Com.   (0th  ed.)   350;   1  Domat,  pt.  1,  lib.  2,  tit.  0.  art.  2."— Ed. 


290  FOESYTII   V.   GAXSON,  [BOOK    II. 

And,  therefore,  it  is  considered  by  the  court  that  the  Judgment  be 
reversed,  the  verdict  set  aside,  and  the  cause  remanded  for  a  new  trial.^ 


FOESYTH  V.  GANSON. 

Supreme  Court  of  Judicature  of  New  York,  1830. 

[5  Wendell  558.] 

By  the  Court,  Sutherland,  J.-  If  the  plaintiff  can  recnvpr  at  all^ 
it  must  be  on  the  ground  that  the  intestate,  John  Ganson,  was  legally 
bojind  to  support  his  stepmother,  Esther  Ganson,  and  that  having 
refused  to  provide  for  her,  the  law  implies  a  promise  on  Ins  part"  to 
pay  the  plaintiff  whatever  he  has  necessarily  expended  in  her  support. 
There  is  no  evidence,  cither  of  a  request  on" the^pafTof^the  intestate 
to  the  plaintiff  to  provide  for  Esther  Ganson,  or  of  an  express  promise 
to  pay  him  for  supporting  her.  The  jury,  by  their  verdict,  have- 
found  that  the  intestate  either  had  funds  in  his  hands  which  he  was 
bound  to  apply  to  the  support  of  his  stepmother,  or  that  upon  a  good 
consideration  he  had  promised  to  provide  for  her;  and  I  think  the 
verdict  is  warranted  by  the  evidence  in  the  case. 

After  the  father  had  given  up  all  his  property  to  his  sons  John  and 
James,  and  they  had  divided  it  between  them,  Timothy  Beckus  testi- 
fies that  James,  speaking  of  the  division  to  John,  said,  "I  consider 
that  I  have  given  you  $1,000  the  best  of  the  bargain.  I  have  had 
a  family  while  you  have  had  none,  and  J  expect  the  old  people  will 
remain  with  you."  James  made  no  reply;  but  that  he  understood 
that  he  was  to  support  his  father  and  stepmother  is  shown  by  the  testi- 
mony of  Edward  Waterous,  who  states  that  after  tlie  division  l)etween 

-In  Preston  v.  Neale  (1858)  12  Gray,  222,  it  was  held  that  a  landlord, 
not  an  innkeeper,  was  entitled  to  a  reasonable  compensation  for  storing  chat- 
tels left  by  an  outgoing  tenant,  until  demand  made,  but  not  afterwards.  After 
citing  and  relying  on  Nicholson  v.  Chapman,  supra,  and  principal  case,  the 
court  said,  per  Metcalf,  J.: 

"There  is  also  an  ancient  authority  on  this  point,  to  wit,  Doctor  and 
Student,  c.  51,  where  is  this  passage:  'Though  a  man  waive  the  possession 
of  his  goods  and  saith  he  forsaketh  them,  yet  by  the  law  of  the  realm  the 
property  remaineth  still  in  him,  and  he  may  seize  them  after  when  he  will. 
And  if  any  man  in  the  meantime  put  the  goods  in  safeguard  to  the  use  of  the 
owner,  I  think  he  doth  lawfully,  and  that  he  shall  be  allowed  for  his  reason- 
able expenses  in  that  behalf,  as  he  shall  be  of  goods  found;  but  he  shall  have 
no  property  in  them,  no  more  than  in  goods  found.'  " — En. 

^A  portion  of  the  opinion,  relating  to  the  admissibility  of  evidence,  is 
omitted. — Ed. 


CHAP.    I.]  FORSYTH   V.  GAXSOX.  291 

John  and  James,  he  heard  John  say  that  the  old  people  were  to  live 
with  him.  They  accordingly  did  remain  with  him  during  his  father's 
life,  and  the  stepmother  remained  some  time  afterwards  without  any 
objection  or  complaint  on  the  part  of  the  intestate.  John  Hascal 
also  testified  that  he  heard  the  father  say  in  John's  presence  that  he 
had  given  up  all  his  property  to  him,  and  that  he  was  to  maintain 
him  and  his  wife;  and  the  same  witness  further  stated  that  he  had 
heard  a  great  deal  of  conversation  in  the  Ganson  family  about  their 
property,  and  that  he  understood  from  such  conversation  that  John 
was  to  support  the  old  people.  This  evidence  warrants  the  conclusion 
that,  in  the  division  of  the  property  of  the  father  between  the  sons, 
the  support  of  the  parents  was  taken  into  consideration  in  the  portion 
allotted  to  John,  and  that  he  undertook,  in  consideration  of  an  extra 
allowance  then  made  to  him,  to  take  care  of  and  provide  for  the  old 
people  during  their  lives. 

The  intestate  in  this  case  being  legally  bound  to  provide  for  Mrs. 
Ganson,  the  services  and  supplies  afforded  to  her  by  the  plaintiff  were 
advantageous  to  the  defendant,  and  may  well  be  considered  as  having 
been  rendered  at  his  request. 

Xew  trial  denied.^ 

^Accord:   Rundell  v.  Bentley    (1889)   53  Hun,  272. 

So  husband  who  has  not  provided  his  wife  with  necessaries  is  liable  to  any 
one  who  does,  Morrison  v.  Holt  (1861)  42  N.  H.  120;  80  Am.  Dec.  120,  123,  note 
(collecting  eases)  ;  especially  is  this  so  if  husband  has  expelled  her  from  his 
home  and  refuses  support,  but  the  stranger  acts  at  his  peril,  Cartwright  v. 
Bate  (1861)  1  Allen,  514;  Cunningham  v.  Reardon  (1868)  98  Mass.  583  (also 
holding  husband  liable  for  reasonable  funeral  expenses  of  Avife  whom  he  had 
expelled  and  refused  to  support).  On  the  question  of  necessaries  in  such  cases, 
see  notes  in  10  Am.  Dec.  462-465  (including  a  discussion  of  wife's  counsel  fees  in 
actions  of  divorce)  ;  Johnson  v.  Williams  (1851)  3  G.  Greene,  97;  54  Am. 
Dec.  491  and  note;  Sprayberry  v.  Merk  (1860)  30  Ga.  81;  76  Am.  Dee.  637.— Ed. 

So  necessaries  furnished  to  a  child  wliom  defendant  was  bound  to  support. 
Manning  v.  Wells  (1894)  29  N.  Y.  Supp.  1044;  Porter  v.  Powell  (1890) 
79  la.  151 ;  so  where  A  lent  the  wife  £30  to  pay  a  physician  for  medical 
services  rendered  to  her,  A  was  subrogated  to  the  physician's  claim.  Harris  v. 
Lee  (1718)  IP.  Wm.  482;  so  a  person  advancing  money  to  a  deserted  wife 
for  her  support.  Deare  v.  Sutton  (1869)  L.  R.  9  Eq.  151;  Jenner  v.  Morris 
(1861)  3  De  G.  F.  &  J.  45,  S.  C.  1  Dr.  &  Sm.  218;  Kenyon  v.  Farris  (1880) 
47  Conn.  510;  Walker  v.  Simpson  (1844)  7  W.  &  S.  83.  Contra,  Skinner  r. 
Tirrell  (1893)   159  Mass.  474  (where  autliorities  are  collected) . 

In  all  these  cases  the  plaintiff  rendered  a  service  to  the  defendant  for  which 
the  latter  was  liable.  If  the  defendant  be  not  liable,  then  the  plaintiff  is 
merely  a  meddler  and  may  not  recover.  Everts  v.  Adams  (1815)  12  Johnson, 
352,  as  to  which  qua; re ;  but  the  decision  in  Force  v.  Haynes  (1840)  2  Harr. 
(N.  J.)  385 — although  decided  on  great  consideration  and  examination  of  the 
authorities — is  clearly  not  to  be  supported,  because  by  law  the  owner  was 
liable  for  the  maintenance  of  his  slave.  In  line  with  the  last  two  cases  is 
Savage  v.  McCorkle  (1888)  17  Ore.  42.— Ed. 


392  PATTERSON   V.  PATTEilSOX.  [BOOK   II. 

PATTEKSON  V.  PATTEESON. 

Court  of  Appeals,  1875. 

[59  Neiv  York,  574.] 

In  an  action  brought  to  foreclose  a  rnqrt^age_execiJiedJ)2^^efendjjjt, 
and  to  secure  defendant's  bond  to^WUliam  Patterson,  plaintiff's  testa- 
tor, defefidani-setoip  as  counter'^laiiD  a  claim  for  rent  due  him  from 
the  testator  at  the  time  of  his  decease,  and  also  for  the  necessary  fune- 
ral expenses  of  the  deceased  paid  by  him  to  the  undertakers  who 
assigned  and  transferred  to  him  their  account  therefor.  The  court 
found  that  there  was  due  the  defendant  and  unpaid  for  rent,  at  the 
time  of  the  testator's  death,  the  sum  of  $877.50,  and  that  the  reason- 
able and  necessary  funeral  expenses  paid  by  defendant  were  the  sum  of 
$184.30,  but  that  such  claims  were  not  proper  set-offs  or  counter- 
claims, and  therefore  refused  to  allow  the  same.^ 

FoLGER,  J.  The  defendant  has  set  up  and  proved  another  item,  that 
of  tjie  funeral  expenses  of  the  burial  of  the  dead  body  of  the  testa- 
tor; and  seeks  to  have  the  amount  of  these  apply  to  diminish  the  re- 
covery against  him.  The  trial  court  has  found  that  the  amount 
thereof,  $184.30,  was  reasonable  and  necessary,  and  that  it  was  in- 
curred and  paid  by  the  defendant,  but  came  to  the  conclusion,  which 
must  be  considered  one  of  law,  that  it  was  not  a  set-off  to  the  claim  of 
the  plaintiff. 

I  have,no^^oubt_biit  that  the  reasonable  and  necessary^^xpeijses 
of  tl*e-interment  of  the  dead  body  of  one  deceased,  -are -a-clia?-ge 
agaifi&t  his^ -estatfi^ihough. Jiiot--striGtly  -a- debt  due- from  hirg.  The 
ground  of  this  is  the  general  right  of  every  one  to  have  decent  burial 
after  death;  which  implies  the  right  to  have  his  body  carried,  decently 
covered,  from  the  place  where  it  lies  to  a  cemetery  or  other  proper  in- 
closure,  and  there  put  under  ground.  Kegina  v.  Stewart,  13  Ad.  &  Ell., 
773,  citing  Gilbert  v.  Buzzard,  2  Hagg.  Consist.  R.  333;  see,  also, 
Chappie  V.  Coope,  13  M.  &  W.  252.  In  the  last  case,  in  which  an  in- 
fant, a  widow,  was  held  liable  on  her  contract  for  the  funeral  expenses 
of  the  burial  of  her  deceased  husband,  it  was  said,  th;it  "there  are 
many  authorities  which  lay  it  down  that  decent  Christian  burial  is 
a  part  of  a  man's  own  rights;  and  we  think  it  no  great  extension  of 
the  rule  to  say,  that  it  may  be  classed  as  a  personal  advantage  and 
reasonably  necessary  to  him."  This  right  existing,  the  law  casts  upon 
some  one  the  duty  of  seeing  that  it  is  accorded.  13  Ad.  &  Ell.  supra. 
So  it  would  seem,  at  common  law,  that  if  a  poor  person  of  no  estate 
dies,  it  is  the  duty  of  him  under  whose  roof  his  body  lies,  to  carry 

'The  statement  of  the  case  is  shortened  and  only  that  part  of  the  opinion 
is  given  relating  to  the  item  of  funeral  expenses. — Ed. 


CHAP.    I.]  PATTERSON  V.  PATTERSON.  293 

it,  decently  covered,  to  the  place  of  burial.  12  Ad.  &  Ell.,  supra. 
The  husband  surviving  is  bound  to  bury  the  corpse  of  his  wife;  and 
in  his  absence,  another,  a  relative,  with  whom  she  has  lived  up  to  her 
death,  having  directed  the  funeral  and  paid  the  expense,  may  recover 
it  of  the  husband.  Jenkins  v.  Tucker,  1  H.  Bl.  90;  13  M.  &  W.  supra; 
and  see  Ambrose  v.  Kenison,  10  C.  B.  776.  And  where  the  owner  of 
some  estate  dies,  the  duty  of  the  burial  is  upon  the  executor.  Toller 
Laws  of  Exrs.,  245,  bk.  3,  cap.  1,  §  1.  And  our  Revised  Statutes 
(2  R.  S.  71,  §  16)  recognize  this  duty,  in  that  the  executor  is  pro- 
hibited from  any  interference  with  the  estate  until  after  probate,  ex- 
except  that  he  may  discharge  the  funeral  expenses.  From  this  duty 
springs  a  legal  obligation,  and  from  the  obligation  the  law  implies  a 
promise  to  him  who,  in  the  absence  or  neglect  of  the  executor,  not 
officiously,  but  in  the  necessity  of  the  case,  directs  a  burial  and  incurs 
and  pays  such  expense  thereof  as  is  reasonable.  Tugwell  v.  Heyman, 
3  Camp.  298.  It  is  analogous  to  the  duty  and  obligation  of  a  father  to 
furnish  necessaries  to  a  child,  and  of  a  husband  to  a  wife,  from  which 
the  law  implies  a  promise  to  pay  him  who  does  what  the  father  or 
the  husband,  in  that  respect,  omits.  And  so,  in  Rogers  v.  Price, 
3  Younge  &  Jervis,  28,  it  was  held  that  an  executor,  with  assets,  is 
liable  to  a  brother  of  the  deceased  for  the  proper  expenses  of  a  funeral 
ordered  and  paid  for  by  the  latter  in  the  absence  of  the  former.  In 
Hapgood  V.  Houghton's  Executor,  10  Pick.  154.  it  was  held  that  the 
law  raises  a  promise  on  the  part  of  the  executor  or  administrator  to 
pay  for  the  funeral  expenses  as  far  as  he  has  assets,  and  that  if  he 
have  no  assets  he  should  plead  that  fact  in  bar,  and  that  if  he  has,  the 
judgment  must  be  against  them  in  his  hands.  iVnd  in  Adams  v.  Butts, 
16  Pick.  343,  it  was  held  that  an  account  for  the  funeral  expenses  of 
a  deceased  person  might  be  set  off  by  the  defendant  in  action  against 
him  by  an  administrator  for  the  work  and  labor  of  the  deceased  in 
his  lifetime.  Price  v.  Wilson,  3  jST.  &  M.  512,  is  sometimes  cited 
as  an  authority  that  "there  is  no  case  which  goes  the  length  of  de- 
ciding that  if  the  funeral  be  ordered  by  another  person,  to  whom 
credit  is  given,  the  executor  is  liable."  Patterson^  J.,  did  there  use 
that  language.  But  in  Green  v.  Salmon,  8  Ad.  &  Ell.  348,  he  limits 
the  expression,  saying:  "The  judgment  there  probably  means  that 
the  executor,  where  credit  has  been  given  to  another  person,  is  not 
liable  to  the  undertaker;  if  it  lays  down  more,  the  law  stated  is  extra- 
judicial." See  also  Rappelyea  v.  Russel,  1  Daly,  214,  where  the  sub- 
ject of  the  liability  of  a  personal  representative  is  well  considered 
by  the  learned  chief   justice  of  the  Xew  York  Common  Pleas. 

To  a  claim  for  the  payment  of  such  expenses  by  an  executor,  the 
objection  does  not  lie  that  the  rule  of  distribution  of  assets  will  be  im- 
properly interfered  with  if  the  claim  is  allowed  and  paid.  Unless 
there  is  some  objection  arising  out  of  statutory  provisions,  these  ex- 
I^enses  must  be  preferred  to  all  other  debts  (Toller  on  Exrs.,  245),  not 


294  PATTERSON  V.   PATTERSON.  [bOOK  II. 

excepting  debts  due  by  record,  even  to  the  sovereign.  Parker  v.  Lewis, 
2  Devereux  [S.  C],  21.  Even  in  the  case  of  an  insolvent  estate,  the 
executor  has  been  allowed  the  reasonable  expenses  of  the  funeral  of  his 
testator,  on  a  plea  of  plene  admmistravit.  Edwards  v.  Edwards,  2  Cr. 
&  M.  612. 

No  statutor}'  provisions  are  now  in  mind  which  interpose  an  ob- 
stacle. Though  our  statute  of  payment  of  debts  and  legacies  (2  K.  S. 
p.  87,  §  27)  gives  the  order  in  which  the  executor  shall  make  payment 
of  debts  against  the  estate,  and  though  there  is  no  provision  there  for 
a  priority  of  payment  of  funeral  expenses,  it  is  not  to  be  held  there- 
from that  the  common-law  rule  is  abrogated.  Those  expenses  are 
not  to  be  treated  as  a  debt  against  the  estate,  but  as  a  charge  upon 
the  estate,  the  same  as  the  necessary  expenses  of  administration. 
Fitzhugh  V.  Fitzhugh,  11  Graft.  300.  The  expenses  of  probate  of  will 
precede  the  formal  authority  to  the  executor,  but  are  allow^ed  to  him 
on  an  accounting.  So  should  funeral  expenses  be.  The  decent 
burial  of  the  dead  is  a  matter  in  which  the  public  have  concern.  It 
is  against  the  public  health  if  it  do  not  take  place  at  all  (Rex.  v.  Stew- 
art, supra),  and  against  a  proper  public  sentiment,  that  it  should  not 
take  place  with  decency.  Kanasan's  Case,  1  Greenl.  226;  see  Jones  v. 
Ashburnham,  4  East.  4G0;  Regina  v.  Fox,  2  Q.  B.  246.  The  Revised 
Statutes,  already  cited,  impliedly  give  discretion  that  the  executor, 
even  before  probate,  shall  pay  the  funeral  charges ;  and  notwithstand- 
ing the  statute  setting  out  the  order  of  payment,  if  he  follow  that 
direction  or  that  authority,  the  amount  will  be  allowed  to  him  as  part 
of  the  expenses  of  his  trust,  with  the  restriction  always  that  the 
amount  is  no  greater  than  is  necessary.  And  if  they  are  paid  by 
another  than  the  executor,  and  reimbursed  by  or  collected  of  the 
latter,  there  must  be  the  same  result.  It  follows  that  the  defendant 
is  entitled  to  be  paid  from  the  assets  of  the  estate  in  the  hands  of  the 
plaintiff,  the  amount  which  he  has  incurred  and  paid  for  funeral 
expenses. 

The  judgment  appealed  from,  must  be  modified  so  as  to  allow  to 
the  defendant,  in  diminution  of  the  amount  of  the  claim  established 
against  him,  the  sum  of  $184.30.  He  is  also  entitled  to  the  interest 
thereon.  There  is  no  day  named  in  the  findings  or  in  the  testimony 
on  which  the  sum  was  paid  by  the  defendant.  He  alleges  in  his 
answer  that  the  claim  was  assigned  to  him  on  the  25th  April.  1872, 
and  if  interest  is  reckoned  from  that  date,  it  will  not  be  unjust  to  him. 

The  judgment  so  modified,  should  be  affirmed,  without  costs  to 
either  party  in  this  court. 

All  concur,  except  Grover,  J.,  dissenting. 

Judgment  accordingly.^ 

'While  it  is  settled  law  that  the  husband  is  responsible  for  the  proper  burial 
of  his  wife  and  expenses  thereby  incurred,  for  which  another  authority  may  be 


ClIAP.   I.]  BARTIIOLO.MEW  V.  JACKSOX.  295 

BARTHOLOMEW  v.  JACKSON". 

Supreme  Court  of  Judicature  of  New  York,  1822. 

[20  J o]inso}i,  28.] 

In  error,  on  certiorari  to  a  justice's  court.  Jackson  sued  Bartholo- 
mew before  a  justice,  for  work  and  labor,  etc.  B.  pleaded  non  assump- 
sit. It  appeared  in  evidence,  that  Jackson  owned  a  wheat  stvibble-field, 
in  which  B.  had  a  stack  of  wheat,  which  he  had  promised  to  remove  in 
due  season  for  preparing  the  ground  for  a  fall  crop.  The  time  for  its 
removal  having  arrived,  J.  sent  a  message  to  B.,  which,  in  his  absence, 
was  delivered  to  his  family,  requesting  the  immediate  removal  of  the 
stack  of  wheat,  as  he  wished,  on  the  next  dav,  to  burn  the  stubljle  on 
the  field.  The  sons  of  B.  answered,  that  they  would  remove  the  stack 
by  ten  o'clock  the  ne.xt  morning.  J.  waited  until  that  hour,  and  then 
set  fire  to  the  stubble  in  a  remote  part  of  the  field.  The  fire  spreading 
rapidly,  and  threatening  to  burn  the  stack  of  wheat,  and  J.,  finding 
that  B.  and  his  sons  neglected  to  remove  the  stack,  set  to  work  and 
removed  it  himself,  so  as  to  secure  it  for  B. ;  and  he  claimed  to  recover 
damages  for  the  work  and  labor  in  its  removal.  The  jury  gave  a 
verdict  for  the  plaintiff  for  fifty  cents,  on  which  the  justice  gave  judg- 
ment, with  costs. 

Platt,  J.,  delivered  the  opinion  of  the  court.  I  should  be  very 
glad  to  affirm  this  judgment;  for  though  the  plaintiff  was  not  legally 
entitled  to  sue  for  damages,  yet  to  bring  a  certiorari  on  such  a  judg- 
ment was  most  unworthy.  The  plaintiff  performed  the  service  without 
the  privity  or  request  of  the  defendant;  and  there  was,  in  fact,  no 
promise,  express  or  implied.  If  a  man  humanely  bestows  his  labor, 
and  even  risks  his  life,  in  voluntarily  aiding  to  preserve  his  neighbor's 

cited.  Cunninjrhani  v.  Reardon  (18G8)  98  IMass.  538,  still  he  may  recover  the 
same  out  of  the  wife's  estate  in  preference  to  her  creditors.  Lightbourn  v. 
]VIcMyn  (1886)  L.  R.  3.3  Ch.  D.  575;  but  he  is  not  liable  for  expenses  incurred  at 
the  direction  of  an  officious  intermeddler.  Quin  r.  Hill  (188(5)  4  Dem.  69; 
Fay  V.  Fay  (1887)  43  N.  J.  Eq.  438  and  note,  in  which  En,ij;1i>h  and  American 
cases  are  collected  and  classified. 

It  niav  be  of  interest  to  note  that  the  Roman  as  well  a^  the  coniiiton  law 
permitted  the  recovery  of  funeral  expenses  by  the  pratorian  actio  funeraria 
ill  bonum  ct  (rquum  concciita  (Girard.  Manuel  de  Droit  Romain  (3d  ed.) 
621-622  and  note).  Therefore  in  the  leading  case  of  Jenkins  r.  Tucker  (1788) 
1  II.  Black.  90,  referred  to  in  princi]ial  case.  Lord  LorGiiBOKorGii,  C.  J.,  trained 
as  he  was  in  Scotch,  i.  e.,  civil  law,  had  no  diiVu-ulty  in  supportinpr  the 
action. — Ed. 


296  CALVERT   V.  ALDRICH.  [bOOK    II. 

liouse  from  destruction  by  fire,  the  law  considers  tlie  service  rendered 
as  gratuitous,  and  it,  tlierefore,  forms  no  ground  of  action.  The  judg- 
ment must  be  reversed.^ 

Judgment  reversed. 


CALVEET  V.  ALDRICH. 

Supreme  Judicial  Court  of  Massachusetts^  1868. 

[99  Massachusetts,  74.] 

The  defendant  filed  a  declaration  in  set-off  on  an  account  annexed 
for  two-fifths  of  the  cost  of  repairs  of  a  machine  shop  in  Lowell :  and 
the  only  c|uestion  in  dispute  was  the  liability  of  the  plaintiff  for 
any  portion  of  such  cost. 

Foster,  J.  The  issue  in  this  action  is  on  an  account  of  one  cotenant 
in  common  against  another  to  recover  from  the  defendant  in  set-off 
part  of  the  cost  of  certain  needful  repairs  made  by  the  plaintiff  in 
set-off  upon  the  common  property.  It  is  not  founded  upon  any  con- 
tract between  the  parties,  but  upon  a  supposed  legal  obligation  which, 
if  its  existence  were  established,  the  law  would  imply  a  promise  to 
fulfil. 

The  doctrine  of  the  common  law  on  this  subject  is  stated  by  Lord 
Coke  as  follows:  "If  two  tenants  in  common  or  joint  tenants  be  of 
an  house  or  mill,  and  it  fall  in  decay,  and  the  one  is  willing  to  repair 
the  same,  and  the  other  will  not,  he  that  is  willing  shall  have  a  writ 
de  reparatione  facienda,  and  the  writ  saith  ad  reparafionem  ct  sus- 
tentationem  ejusdem  domus  teneantur,  whereby  it  appeareth  that 
owners  are  in  that  case  bound  pro  bono  publico  to  maintain  houses 
and  mills  which  are  for  habitation  and  use  of  men."   Co.  Lit.  2000  /; ; 

^"Tlie  case  of  Bartholomew  v.  Jackson,  20  John.  28,  is  one,  like  perhaps 
hundreds  which  may  be  found  in  the  books.  ...  In  that  case  it  was  held, 
that  labor  voluntarily  performed  by  the  plaintiff  for  the  defendant,  without 
his  privity  or  request,  however  meritorious  and  beneficial  it  may  be  to  the 
defendant,  as  in  saving  his  property  from  destruction  by  fire,  affords  no 
,1,'round  of  action.  A  claim  for  compensation  or  damages,  in  the  shape  of 
interest,  for  money  applied  to  the  benefit  of  another,  without  his  privity 
or  request,  must  rest  on  the  same  foundation  with  any  other  service.  The 
benefit  received  is  not  the  test.  It  must  be  requested  or  agreed  to  be  re- 
ceived. Every  man  is  permitted  to  regulate  his  own  affairs  in  his  own  way; 
and  he  is  the  best  judge  when  and  where  he  will  liave  services  performed  or 
money  advanced  for  him.  There  is  no  equity  in  making  him  pay  for  the  use 
of  money,  although  employed  for  his  benefit,  without  his  request."  Per 
Spencer,  Senator,  in  Renss.  Glass  Factory  v.  Eeid   (1825)   5  Cow.  587,  620. 

Accord:  Merritt  v.  Am.  Dock  Co.  (1891)  13  N.  Y.  Supp.  234;  Railroad  v. 
Turcan   (1894)   4G  La.  Ann.  155.— Ed. 


CHAP.    I.]  CALVERT  V.  ALDRICII.  297 

lb.  54  h.  And  in  another  place  he  says:  "If  there  be  two  joint 
tenants  of  a  wood  or  arable  land,  the  one  has  no  remedy  against  the 
other  to  make  inclosure  or  reparations  for  safeguard  of  the  wood  or 
corn/'  but  if  there  be  two  joint  tenants  of  a  house,  the  one  shall  have 
his  writ  de  reparatione  faciendd  against  the  other.  This  is  said  to 
be  because  of  "the  preeminence  and  privilege  which  the  law  gives  to 
houses  wliich  are  for  men's  habitation."    Bowles's  case,  11  Co.  82. 

In  Carver  v.  Miller,  4  Mass.  561,  it  was  doubted  by  Chief  Justice 
Parsons  whether  these  maxims  of  the  common  law,  as  applied  to  mills, 
are  in  force  here,  especially  since  the  provincial  statute  of  7  Anne, 
c.  1,  revised  by  St.  1795,  c.  74. 

In  Loring  v.  Bacon,  4  Mass.  575,  the  plaintiff  was  seised  in  fee  of  a 
room  and  the  cellar  under  it,  and  the  defendant  of  the  chamber  over- 
head and  of  the  remainder  of  the  house ;  the  roof  was  out  of  repair ; 
the  defendant,  being  seasonably  requested,  refused  to  join  in  repairing 
it;  and  thereupon  the  plaintiff  made  the  necessary  repairs,  and 
brought  assumpsit  to  recover  from  the  defendant  his  proportion  of 
their  cost.  This,  it  will  be  observed,  was  not  a  case  of  tenancy  in 
common,  but  of  distinct  dwelling-houses,  one  over  the  other.  Chief 
Justice  Parsons  said :  "If  there  is  a  legal  obligation  to  contribute  to 
these  repairs,  the  law  will  imply  a  promise.  We  have  no  statute  nor 
any  usage  on  the  subject,  and  must  apply  to  the  common  law  to  guide 
us."  "L'pon  a  very  full  research  into  the  principles  and  maxims  of 
the  common  law,  we  cannot  find  that  any  remedy  is  provided  for  the 
plaintiff."  It  was  not  absolutely  decided  that  an  action  on  the  case 
would  not  lie,  but  the  intimations  of  the  court  on  the  subject  were 
such  that  no  further  attempt  appears  to  have  been  made.  The  rela- 
tions between  tenants  in  common  were  not  actually  involved  in  this 
case,  and  the  remarks  touching  the  writ  de  reparatione  were  only  inci- 
dental and  by  way  of  illustration. 

Doane  v.  Badger,  12  Mass.  65,  was  an  action  on  the  case.  The 
plaintiff  had  a  right  to  use  a  well  and  pump  on  the  defendant's  land ; 
and  the  defendant  had  removed  the  pump  and  built  over  the  well, 
thereby  depriving  the  plaintiff'  of  the  use  of  the  water.  The  judge 
before  whom  the  case  was  tried  had  instructed  the  jury  that  the 
defendant,  by  the  terms  of  a  deed  under  which  he  claimed,  was  bound 
to  keep  the  well  and  pump  in  repair,  although  they  were  out  of 
repair  when  he  purchased,  and,  without  any  previous  notice  or  request, 
was  liable  in  damages  for  the  injury  the  plaintiff  had  sustained  by 
his  neglect  to  make  repairs.  The  court  held  that  no  such  evidence 
was  admissible  under  the  declaration,  the  cause  of  action  stated  being 
a  misfeasance,  and  the  proof  offered  being  of  a  nonfeasance  only; 
also,  that  a  notice  and  request  were  indispensa1)le  before  any  action 
could  be  maintained.  Mr.  Justice  Jackson  in  delivering  the  opinion 
made  some  general  observations,  unnecessary  to  the  decision  of  the 
cause,  the  correctness  of  which  requires  a  particular  examination.    He 


298  CALVERT  V.  ALDRICir.  [BOOK   II. 

said  that  the  action  on  the  case  seems  to  be  a  substitute  for  the  old  writ 
de  reparatione  facienda  between  tenants  in  common,  and  could  not  be 
brought  until  after  a  request  and  refusal  to  Join  in  making  the  repairs. 
He  added :  "From  the  form  of  the  writ  in  the  register,  it  seems  that  the 
plaintiff,  before  bringing  the  action,  had  repaired  the  house,  and  was 
to  recover  the  defendant's  proportion  of  the  expense  of  those  repairs. 
The  writ  concludes,  'in  ipsius  dispendium  non  modicum  et  grava- 
men/ It  is  clear  that  until  he  have  made  the  repairs  he  cannot  in 
any  form  of  action  recover  anything  more  than  for  his  loss  as  of 
rent,  &c.,  while  the  house  remains  in  decay.  For  if  he  should  recover 
the  sum  necessary  to  make  the  repairs,  there  would  be  no  certainty 
that  he  would  apply  the  money  for  that  purpose."  Mumford  v. 
Brown,  6  Cowen,  475,  a  per  curiam  opinion  of  the  supreme  court  of 
Xew  York,  and  Coffin  v.  Heath,  C  Met.  80,  both  contain  ohiter  dicta 
to  the  same  effect,  apparently  founded  upon  Doane  v.  Badger,  without 
further  research  into  the  ancient  law.  If  it  were  true  that  the  writ 
de  reparatione  was  brought  by  one  cotenant,  after  he  had  made 
repairs,  to  recover  of  his  cotenant  a  due  proportion  of  the  expense 
thereof,  there  would  certainly  be  much  reason  for  holding  an  action  on 
the  case  to  be  a  modern  substitute  for  the  obsolete  writ  de  reparatione. 
But  all  the  Latin  forms  of  the  writ  in  the  Eegister,  153,  show  that  it 
was  brought  before  the  repairs  were  made,  to  compel  them  to  be  made 
under  the  order  of  court.  Indeed,  this  is  implied  in  the  very  style 
by  which  the  writ  is  entitled,  de  reparatione  facienda,  viz. :  of  repairs 
to  be  made;  the  future  participle  facienda  being  incapable  of  any 
other  meaning.  This  also  appears  in  Fitzherbert,  N.  B.  127,  where 
the  writ  between  cotenants  of  a  mill  is  translated;  the  words,  in 
ipsius  dispendium  non  modicum  et  gravamen  (quoted  by  Judge  Jack- 
sox),  being  correctly  rendered,  "to  the  great  damage  and  grievance 
of  him,"  the  said  plaintiff.  Fitzherbert  says:  "The  writ  lieth  in 
divers  cases;  one  is,  where  there  are  three  tenants  in  common  or  joint 
or  pro  indiviso  of  a  mill  or  a  house,  &c.,  which  falls  to  decay,  and 
one  will  repair  but  the  other  will  not  repair  the  same;  he  shall  have 
this  writ  against  them."  In  the  case  of  a  ruinous  house  which  en- 
dangers the  plaintiff's  adjoining  house,  and  in  that  of  a  bridge  over 
which  the  plaintiff  has  a  passage,  which  the  defendant  ought  to  repair, 
but  which  he  suffers  to  fall  to  decay,  the  words  of  the  precept  are, 
"Command  A.  that,"  &c.,  'Tie,  together  with  B.  and  C,  his  partners, 
cause  to  he  repaired."  The  cases  in  the  Year  Books  referred  to  in  the 
margin  of  Fitzherbert  confirm  the  construction  which  we  regard  as  the 
only  one  of  which  the  forms  in  that  author  are  susceptible,  namely, 
that  the  writ  de  reparatione  was  a  process  to  compel  repairs  ta  be 
made  under  the  order  of  court.  There  is  nothing  in  them  to  indicate 
tliat  an  action  for  damages  is  maintainal)le  by  one  tenant  in  common 
against  another  because  the  defendant  will  not  join  with  the  plaintiff 
in  repairing  the  common  property.     In   a   note  to  the  form  in  the 


CHAP.    I.]  CALVERT  V.  ALDRICII.  299 

case  of  a  bridge,  it  is  said  in  Fitzherbert:  "In  this  writ  the  party 
recovers  his  damages,  and  it  shall  be  awarded  that  the  defendant 
repair,  and  that  he  l)e  distrained  to  do  it.  So  in  this  writ  he  shall 
have  the  view  contra,  if  it  be  but  an  action  on  the  case  for  not  repair- 
ing, for  there  he  shall  recover  but  damages."  There  is  no  doubt  that 
an  action  on  the  case  is  maintainable  to  recover  damages  in  cases 
where  the  defendant  is  alone  bound  to  make  repairs  for  the  benefit 
of  the  plaintiff  without  contribution  on  the  part  of  the  latter,  and  has 
neglected  and  refused  to  do  so.  See  Tenant  v.  Goldwin,  6  Mod.  311; 
S.  C.  2  Ld.  Eaym.  1089;  1  Salk.  21,  360. 

The  difficulty  in  the  way  of  awarding  damages  in  favor  of  one 
tenant  in  common  against  his  cotenant  for  neglecting  to  repair 
is,  that  both  parties  are  equally  bound  to  make  the  repairs,  and 
neither  is  more  in  default  than  the  other  for  a  failure  to  do  so. 
Upon  a  review  of  all  the  authorities,  we  can  find  no  instance  in 
England  or  this  country  in  which,  between  cotenants,  an  action  at  law 
of  any  kind  has  been  sustained,  either  for  contribution  or  damages, 
after  one  has  made  needful  repairs  in  which  the  other  refused  to  join. 
We  are  satisfied  that  the  law  was  correctly  stated  in  Converse  v. 
Ferre,  11  Mass.  325,  by  Chief  Justice  Parker,  who  said :  "At  common 
law  no  action  lies  by  one  tenant  in  common,  who  has  expended  more 
than  his  share  in  repairing  the  common  property,  against  the  deficient 
tenants,  and  for  this  reason  our  legislature  has  provided  a  remedy 
applicable  to  mills."  The  writ  de  reparatione  facienda  brought  before 
the  court  the  question  of  the  reasonableness  of  the  repairs  proposed, 
before  the  expenditures  were  incurred.  It  seems  to  have  been  seldom 
resorted  to;  perhaps  because  a  division  of  the  common  estate  would 
usually  be  obtained  where  the  owners  were  unable  to  agree  as  to  the 
necessity  or  expediency  of  repairs.  Between  tenants  in  common,  par- 
tition is  the  natural  and  usually  the  adequate  remedy  in  every  case 
of  controversy.  This  is  the  probable  explanation  of  the  few  authori- 
ties in  the  books,  and  of  the  obscurity  in  which  we  have  found  the 
whole  subject  involved.  But  if  we  have  fallen  into  any  error  in  our 
examination  of  the  original  doctrines  of  the  common  law  of  England. 
it  is  at  least  safe  to  conclude  that  no  action  between  tenants  in 
common  for  neglecting  or  refusing  to  repair  the  common  property,  or 
to  recover  contribution  for  repairs  made  thereon  by  one  without  the 
consent  of  the  other,  has  been  adopted  among  the  common  law  rem- 
edies in  Massachusetts. 

This  result  is  in  accordance  with  the  rulings  at  the  trial. 

Exceptions  overruled} 

'Accord:  Leigh  v.  Dickinson  (1884)  L.  R.  15  Q.  B.  Div.  60,  holding  that 
while  no  recovery  could  be  had  in  a  common-law  action,  an  allowance  would 
be  made  in  partition  in  chancery  for  improvements.  Thompson  v.  Newton 
(1884)  2  Pa.  County  Reports,  36-2.  holding  that  one  tenant  in  common  can- 
not sue  another  in  debt  or  assumpsit  for  work  and  labor  in  the  management 


300  BOSTON  ICE  COMPANY   V.   POTTER.  [BOOK    II. 

BOSTON  ICE  COMPANY  v.  POTTER. 

Supreme  Judicial  Court  op  Massachusetts,  1877. 

[133  Massachusetts  Reports,  28.] 

Contract  on  an  account  annexed,  for  ice  sold  and  delivered  between 
April  1,  1874,  and  April  1,  1875.    Answer,  a  general  denial. 

At  the  trial  in  the  Superior  Court,  before  Wilkinson,  J.,  without  a 
jury,  the  plaintiff  offered  evidence  tending  to  show  the  delivery  of  the 
ice,  and  its  acceptance  and  use  by  the  defendant  from  April  1,  1874,  to 
April  1,  1875,  and  that  the  price  claimed  in  the  declaration  was  the 
market  price.  It  appeared  that  the  ice  was  delivered  and  used  at  the 
defendant's  residence  in  Boston,  and  the  amount  left  daily  was  regu- 
lated by  the  orders  received  there  from  the  defendant's  servants;  that 
the  defendant,  in  1873,  was  supplied  with  ice  by  the  plaintiff,  but,  on 
account  of  some  dissatisfaction  with  the  manner  of  supply,  terminated 
his  contract  with  it ;  that  the  defendant  then  made  a  contract  with  the 
Citizens'  Ice  Company  to  furnish  him  with  ice;  that  some  time  before 
April,  1874,  the  Citizens'  Ice  Company  sold  its  business  to  the  plain- 
tiff, with  the  privilege  of  supplying  ice  to  its  customers.  There  was 
some  evidence  tending  to  show  that  the  plaintiff  gave  notice  of  this 
change  of  business  to  the  defendant,  and  informed  him  of  its  in- 
tended supply  of  ice  to  him ;  but  this  was  contradicted  on  the  part  of 
the  defendant. 

The  judge  found  that  the  defendant  received  no  notice  from  the 
plaintiff  until  after  all  the  ice  had  been  delivered  by  it,  and  that  there 
was  no  contract  of  sale  between  the  parties  to  this  action  except  what 
was  to  be  implied  from  the  delivery  of  the  ice  by  the  plaintiff  to  the 
defendant  and  its  use  by  him;  and  ruled  that  the  defendant  had  a 
right  to  assume  that  the  ice  in  question  was  delivered  by  the  Citizens' 

of  tlie  common  property,  in  the  absence  of  evidence  of  a  contract  between  them: 
see  also  Taylor  v.  Baldwin  (1851)  10  Barb.  G26 ;  Chapin  v.  Smith  (1884) 
52  Conn.  260;  Bazemore  v.  Davis  (1875)  55  Ga.  504,  519;  Williams  v. 
Coombs  (1896)  88  Me.  183;  Woolever  v.  Knapp  (1854)  18  Barb.  265;  Kill- 
mer  v.  Wuehner  (1890)  79  la.  722.  But  compare  Fuselier  v.  Lacour  (1848) 
3  La.  Ann.  162;  Smith  v.  Wilson  (1855)   10  La.  Ann.  255. 

A  tenant  in  common  could  not  sue  his  co-tenant  at  common  law  who  has 
received  more  than  his  share  of  the  profits.  Thomas  v.  Thomas  (1850)  5  Ex. 
28;  Henderson  v.  Eason  (1851)  17  Q.  B.  701;  Norris  v.  Gould  (1884) 
17  Pliila.  318;  but  in  the  United  States  recovery  is  usually  permitted  by 
statutes.     See   1    Stimson,  Am.  St.  Law.   §  1378. 

And  see,  on  the  relation  of  tenants  in  common  in  respect  of  improvements 
and  lial)ility  for  use  and  occupation.  Gage  v.  Gage  (1890)  66  N.  H.  282,  where 
the  authorities  are  elaborately  cited  and  discussed. — Ed. 


CHAP.    I.]  BOSTON  ICE  COMPANY  V.   POTTER.  301 

Ice  Compan}',  and  that  the  plaintiff  could  not  maintain  this  action. 
The  plaintiff  alleged  exceptions. 

Endicott^  J.  To  entitle  the  plaintiff  to  recover,  it  must  show  some 
contract  with  the  defendant.  There  was  no  express  contract,  and  upon 
the  facts  stated  no  contract  is  to  be  implied.  The  defendant  had  taken 
ice  from  the  plaintiff  in  1873,  but,  on  account  of  some  dissatisfaction 
with  the  manner  of  supply,  ho  terminated  his  contract,  and  made  a 
contract  for  his  supply  with  the  Citizens'  Ice  Company.  The  plaintiff 
afterward  delivered  ice  to  the  defendant  for  one  year  without  notifying 
the  defendant,  as  the  presiding  judge  has  found,  that  it  had  bought  out 
the  business  of  the  Citizens'  Ice  Company,  until  after  the  delivery  and 
comsumption  of  the  ice. 

The  presiding  judge  has  decided  that  the  defendant  had  a  right 
to  assume  that  the  ice  in  question  was  delivered  by  the  Citizens'  Ice 
Company,  and  has  thereby  necessarily  found  that  the  defendant's 
contract  with  that  company  covered  the  time  of  the  delivery  of 
the  ice. 

There  was  no  privity  of  contract  established  between  the  plaintiff 
and  defendant,  and  without  such  privity  the  possession  and  use  of  the 
property  will  not  support  an  implied  assumpsit.  Hills  r.  Snell,  104 
Mass.  173,  177.  And  no  presumption  of  assent  can  be  implied  from 
the  reception  and  use  of  the  ice,  because  the  defendant  had  no  knowl- 
edge that  it  was  furnished  by  the  plaintiff,  but  supposed  that  he  re- 
ceived it  under  the  contract  made  with  the  Citizens'  Ice  Company. 
Of  this  change  he  was  entitled  to  be  informed. 

A  party  has  a  right  to  select  and  determine  with  whom  he  will  con- 
tract, and  cannot  have  another  person  thrust  upon  him  without  his 
consent.  It  may  be  of  importance  to  him  who  performs  the  contract, 
as  when  he  contracts  with  another  to  paint  a  picture,  or  write  a  book, 
or  furnish  articles  of  a  particular  kind,  or  when  he  relies  upon  the 
character  or  qualities  of  an  individual,  or  has,  as  in  this  case,  reasons 
why  he  does  not  wish  to  deal  with  a  particular  party.  In  all  these 
cases,  as  he  may  contract  with  whom  he  pleases,  the  sufficiency  of  his 
reasons  for  so  doing  cannot  be  inquired  into.  If  the  defendant,  before 
receiving  the  ice,  or  during  its  delivery,  had  received  notice  of  the 
change,  and  that  the  Citizens'  Ice  Company  could  no  longer  perform 
its  contract  with  him,  it  would  then  have  been  his  undoubted  right  to 
have  rescinded  the  contract  and  to  decline  to  have  it  executed  by  the 
plaintiff.  But  this  he  was  unable  to  do,  because  the  ]ilaintiff  failed  to 
inform  him  of  that  which  he  had  a  right  to  know.  Orcutt  /-.  Xelson, 
1  Grav,  536,  542 ;  Winchester  v.  Howard,  97  Mass.  303 ;  Hardman  v. 
Booth,  1  H.  &  C.  803;  Humble  v.  Hunter,  12  Q.  B.  310;  Eobson  v. 
Drummond,  2  B.  &  Ad.  303.  If  he  had  received  notice  and  continued 
to  take  the  ice  as  delivered,  a  contract  would  be  implied,  kludge  v. 
Oliver,  1  Allen,  74 ;  Orcutt  v.  Nelson,  1  Gray,  536,  542 ;  Mitchell  v. 
Lapage,  Holt  X.  T.  253. 


302  BOSTON  ICE  COMrAXY  V.  POTTER.  [BOOK    II. 

There  are  t\A'o  English  cases  very  similar  to  the  case  at  bar.  In 
Schmaling  v.  Thomlinson,  6  Taunt.  147,  a  iirm  was  employed  by  the 
defendants  to  transport  goods  to  a  foreign  market,  and  transferred 
the  entire  employment  to  the  plaintiff,  who  performed  it  without  the 
privity  of  the  defendants,  and  it  was  held  that  he  could  not  recover 
compensation  for  his  services  from  the  defendants. 

The  case  of  Boulton  v.  Jones,  2  H.  &  N.  564  was  cited  by  both  parties 
at  the  argument.  There  the  defendant,  who  had  been  in  the  habit  of 
dealing  with  one  Brocklehurst,  sent  a  written  order  to  him  for  goods. 
The  plaintiff,  who  had  on  the  same  day  bought  out  the  business  of 
Brocklehurst,  executed  the  order  without  giving  the  defendant  notice 
that  the  goods  were  supplied  by  him  and  not  by  Brocklehurst.  And  it 
was  held  that  the  plaintiff  could  not  maintain  an  action  for  the 
price  of  the  goods  against  the  defendant.  It  is  said  in  that  case 
that  the  defendant  had  a  right  of  set-ofE  against  Brocklehurst,- 
with  whom  he  had  a  running  account,  and  that  is  alluded  to  in 
the  opinion  of  Baron  Bramwell,  though  the  other  judges  do  not 
mention  it.^ 

The  fact  that  a  defendant  in  a  particular  case  has  a  claim  in  set- 
off against  the  original  contracting  party  shows  clearly  the  injustice 
of  forcing  another  person  upon  him  to  execute  the  contract  without 
his  consent,  against  whom  his  set-off  would  not  be  available.  But  the 
actual  existence  of  the  claim  in  set-off  cannot  be  a  test  to  determine 
that  there  is  no  implied  assumpsit  or  privity  between  the  parties.  Nor 
can  the  non-existence  of  a  set-off  raise  an  implied  assumpsit.  If  there 
is  such  a  set-off,  it  is  sufficient  to  state  that,  as  a  reason  why  the  de- 
fendant should  prevail;  but  it  by  no  means  follows  that  because  it 
does  not  exist  the  plaintiff  can  maintain  his  action.  The  right  to 
maintain  an  action  can  never  depend  upon  whether  the  defendant  has 
or  has  not  a  defence  to  it. 

The  implied  assumpsit  arises  upon  the  dealings  between  the  parties 
to  the  action,  and  cannot  arise  upon  the  dealings  between  the  defend- 
ant and  the  original  contractor,  to  which  the  plaintiff  was  not  a  party. 
At  the  same  time,  the  fact  that  the  right  of  set-off  against  the  original 
contractor  could  not,  under  any  circumstances,  be  availed  of  in  an 
action  brought  upon  the  contract  by  the  person  to  whom  it  was  trans- 
ferred and  who  executed  it,  shows  that  there  is  no  privity  between  the 
parties  in  regard  to  the  subject-matter  of  this  action. 

It  is,  therefore,  immaterial  that  the  defendant  had  no  claim  in 
set-off  against  the  Citizens'  Ice  Company. 

^Acc'ordinj;  to  Mudfje  v.  Oliver  (1861)  1  Allen,  74,  it  would  seem,  that  a 
count  for  poods  sold  and  delivered  would  have  lain  against  the  purchaser  if 
the  goods  liad  been  in  existence  at  the  time.  The  retention  of  the  goods  under 
tliese  circumstances  would  have  waived  the  defence  arising  from  the  lack  of 
request. — Ed. 


CHAP.  I.]  UNITED  STATES  V.  PACIFIC  RAILROAD.  303 

We  are  not  called  upon  to  determine  what  other  remedy  the  plain- 
tiff has,  or  what  would  be  the  rights  of  the  parties  of  the  ice  were  not 
in  existence.^ 

Exceptions  overruled. 


UNITED  STATES  v.  PACIFIC  RAILROAD.     PACIFIC  RAIL- 
ROAD V.  UNITED  STATES. 

Supreme  Court  of  the  United  States,  1887. 

[120  United  States  Reports,  227.] 

These  were  appeals  from  the  Court  of  Claims.  The  case  is  stated 
in  the  opinion  of  the  court. 

Mr.  Justice  Field  delivered  the  opinion  of  the  court. 

The  Pacific  Railroad  Company,  the  claimant  in  this  case,  is  a  cor- 
poration created  under  the  laws  of  Missouri,  and  is  frequently  desig- 
nated as  the  Pacific  Railroad  of  that  State,  to  distinguish  it  from  the 
Central  Pacific  Railroad  Company  incorporated  under  the  laws  of 
California,  and  the  Union  Pacific  Railroad  Company  incorporated 
under  an  act  of  Congress,  each  of  which  is  sometimes  referred  to  as 
the  Pacific  Railroad  Company. 

From  the  14th  of  August,  1867,  to  the  22d  of  July,  1872,  it 
rendered  services  by  the  transportation  of  passengers  and  freight,  for 
which  the  United  States  are  indebted  to  it  in  the  sum  of  $136,196.98, 
unless  they  are  entitled  to  offset  the  cost  of  labor  and  materials  alleged 
to  have  been  furnished  by  them,  at  its  request,  for  the  construction 
of  certain  bridges  on  the  line  of  its  road.  The  extent  and  value  of  the 
services  rendered  are  not  disputed.  It  is  only  the  offset  or  charge  for 
the  bridges  which  is  in  controversy ;  and  that  charge  arose  in  this  wise : 
During  the  civil  war,  the  State  of  Missouri  was  the  theatre  of  active 
military  operations.  It  was  on  several  occasions  invaded  by  Con- 
federate forces,  and  between  them  and  the  soldiers  of  the  Union  con- 
flicts were  frequent  and  sanguinary.  The  people  of  the  State  were 
divided  in  their  allegiance,  and  the  country  was  ravaged  by  guerilla 
bands.  The  railroads  of  the  State,  as  a  matter  of  course,  were  dam- 
aged by  the  contending  forces ;  as  each  deemed  the  destruction  of  that 
means  of  transportation  necessary  to  defeat  or  embarrass  the  move- 
ments of  the  other.  In  October  1864,  Sterling  Price,  a  noted  Confed- 
erate officer,  at  the  head  of  a  large  force,  invaded  the  State  and  ad- 
vanced rapidly  toward  St.  Louis,  approaching  to  within  a  few  days' 
march  of  the  city.  During  this  invasion,  thirteen  bridges  upon  the 
main  line  and  southwestern  branch  of  the  company's  road  were  de- 

>Accord:  Pittsburgh  Plate  Glass  Co.  v.  Macdonald  (1903)  182  Mass.  593, 
595.— Ed. 


30-i  UXITED  STATES    V.   PACiriC   RAILROAD.  [BOOK    II. 

stroyed.  General  Eosccrans  was  in  command  of  the  Federal  forces  in 
the  State,  and  some  of  the  bridges  were  destroyed  by  his  orders,  as  a 
military  necessit}',  to  prevent  the  advance  of  the  enemy.  The  record 
does  not  state  by  whom  the  others  were  destroyed ;  but  their  destruction 
having  taken  place  during  the  invasion,  it  seems  to  have  been  taken  for 
granted  that  it  was  caused  by  the  Confederate  forces,  and  this  con- 
clusion was  evidently  correct.  All  the  bridges  except  four  were  rebuilt 
by  the  company.  These  four  were  rebuilt  by  the  government,  and  it 
is  their  cost  which  the  government  seeks  to  offset  against  the  demand, 
of  the  company.  Two  of  the  four  (one  over  the  Osage  River  and  one 
over  the  Moreau  River)  were  destroyed  by  order  of  the  commander  of 
the  Federal  forces.  The  other  two,  which  were  over  the  Maramec 
River,  it  is  presumed,  were  destroyed  by  the  Confederate  forces.^ 

The  cost  of  the  four  bridges  rebuilt  by  the  government  amounted  to 
$:  81,5-1:8.89.  The  question  presented  is,  whether  the  company  is 
chargeable  with  their  cost,  assuming  that  there  was  no  promise  on  its 
part,  express  or  implied,  to  pay  for  them.  That  there  was  no  express 
promise  is  clear.  The  representations  and  assurances  at  the  con- 
ference called  by  General  Rosecrans  to  urge  the  rebuilding  of  the 
bridges  were  not  intended  or  understood  to  constitute  any  contract : 
and  it  is  so  found,  as  above  stated,  by  the  court  below.  They  were  re- 
built by  the  government  as  a  military  necessity  to  enable  the  Federal 
forces  to  carry  on  military  operations,  and  not  on  any  request  of  or 
contract  with  the  company.  As  to  the  two  bridges  destroyed  by  the 
Federal  forces,  some  of  the  officers  of  the  company  at  that  conference 
insisted  that  they  should  be  rebuilt  by  the  government  without  charge 
to  the  company,  and,  though  they  appeared  to  consider  that  those  de- 
•  stroyed  by  the  enemy  should  be  rebuilt  by  the  company,  there  was  no 
action  of  the  board  of  directors  on  the  subject.  What  was  said  by  them 
was  merely  an  expression  of  their  individual  opinions,  which  were  not 
even  communicated  to  the  board.  Nor  can  any  such  promise  be  im- 
plied from  the  letter  of  the  president  of  the  company  to  the  Quarter- 
master General  in  November,  subsequent  to  the  destruction  of  the 
bridges,  informing  him  that  the  delay  of  the  War  Department  in  re- 
building them  had  prompted  the  company  to  "unusual  resources" ; 
that  it  was  constructing  the  bridges  over  the  Gasconade  and  the  IMoreau 
Rivers,  and  that  the  only  bridge  on  the  main  line  to  be  replaced  by  the 
government  was  the  one  over  the  Osage  River,  the  company  having  re- 
placed all  the  smaller,  and  was  then  replacing  all  the  larger  ones. 
The  letter  only  imparts  information  as  to  the  work  done  and  to  be 
(lone  in  rebuilding  the  bridges  on  the  main  line.  It  contains  no 
])romise,  as  the  court  below  seems  to  have  thought,  that,  if  the  govern- 
ment would  rebuild  the  bridge  over  the  Osage  River,  it  should  be  re- 

'iStatcmoiit  of  iioj,'(il  in  lions  botwccn  General  Rosecrans  and  the  oilicials  of 
the  railroad  coiiipany  omitted. — Ed. 


CHAP.    I.]  UNITED  STATES  V.   PACIFIC   RAILROAD.  305 

imbursed  for  any  other  it  ini<(lit  rebuild  on  the  main  line  of  the  com- 
pany. Nor  do  we  think  that  any  promise  can  be  implied  from  the 
fact  that  the  comj)any  resumed  the  management  and  operation  of  the 
rqad  after  the  bridges  were  rebuilt;  but  on  that  point  we  will  speak 
hereafter.  Assuming,  for  the  present,  that  there  was  no  such  impli- 
cation, we  are  clear  that  no  obligation  rests  upon  the  company  to  pay 
for  work  done,  not  at  its  request  or  for  its  benefit,  but  solely  to  enable 
the  government  to  carry  on  its  military  operations. 

While  the  government  cannot  be  charged  for  injuries  to,  or  de- 
striTction  of,  private  property  caused  by  military  operations  of 
armies  in  the  field,  or  measures  taken  for  their  safety  and  efficiency,^ 
the  converse  of  the  doctrine  is  equally  true,  that  private  parties  can- 
not be  charged  for  works  constructed  on  their  lands  by  the  govern- 
ment to  further  the  operations  of  its  armies.  Military  necessity  will 
justify  the  destruction  of  property,  but  will  not  compel  jjrivate  parties 
to  erect  on  their  own  lands  works  needed  by  the  government,  or  to  pay 
for  such  works  when  erected  by  the  government.  The  cost  of  build- 
ing and  re])airing  roads  and  bridges  to  facilitate  the  movements  of 
troops,  or  the  transportation  of  supplies  and  munitions  of  war,  must, 
therefore,  be  borne  by  the  government. 

It  is  true  that  in  some  instances  the  works  thus  constructed  may, 
afterwards,  be  used  by  the  owner;  a  house  built  for  a  barrack,  or  for 
the  storage  of  supplies,  or  for  a  temporary  fortification,  might  be  con- 
verted to  some  purposes  afterwards  by  the  owner  of  the  land,  but  that 
circumstance  would  impose  no  liability  upon  him.  Whenever  a  struc- 
ture is  permanently  affixed  to  real  property  belonging  to  an  individual, 
without  his  consent  or  request,  he  cannot  be  held  responsible  because 
of  its  subsequent  use.  It  becomes  his  by  being  annexed  to  the  soil; 
and  he  is  not  obliged  to  remove  it  to  escape  liability.  lie  is  not  deemed 
to  have  accepted  it  so  as  to  incur  an  obligation  to  pay  for  it,  merely 
because  he  has  not  chosen  to  tear  it  down,  but  has  seen  fit  to  use  it. 
Zottman  v.  San  Francisco,  20  Cal.  96,  107.  Where  structures  are 
placed  on  the  property  of  another,  or  repairs  are  made  to  them,  he  is 
supposed  to  have  the  right  to  determine  the  manner,  form,  and  time 
in  which  the  structures  shall  be  built,  or  the  repairs  made,  and  the 
materials  to  be  used ;  but  upon  none  of  these  matters  was  the  company 
consulted  in  the  case  before  us.  The  government  regarded  the  interests 
only  of  the  army ;  the  needs  or  wishes  of  the  company  were  not  consid- 
ered. No  liability,  therefore,  could  be  fastened  upon  it  for  work  thus 
done. 

We  do  not  find  any  adjudged  cases  on  this  particular  point. — 
whether  the  government  can  claim  compensation  for  structures  erected 
on  land  of  private  parties,  or  annexed  to  their  property,  not  by  their 
request,  but  as  a  matter  of  military  necessity,  to  enable  its  armies  to 

'So  much  of  the  opinion  as  relates  to  this  question  has  been  omitted. — Ed. 


306  CAIIILL  V.  HALL.  [BOOK    II. 

prosecute  their  movements  with  greater  efficiency ;  and  we  are  unable 
to  recall  an  instance  where  such  a  claim  has  been  advanced. 

It  follows  from  these  views,  that  the  government  can  make  no 
charge  against  the  railroad  company  for  the  four  bridges  constructed 
by  it  from  military  necessity.    The  court  will  leave  the  parties  where 
the  war  and  the  military  operations  of  the  government  left  them. 
The  judgment  of  the  Court  of  Claims  must,  therefore,  he  reversed, 
and  judgment  be  entered  for  the  full  amount  claimed  by  the  rail- 
road company  for  its  services;  and  it  is  so  ordered. 


CAHILL  V.  HALL. . 

Supreme  Judicial  Court  of  Massachusetts,  1894. 

[161  Massachusetts,  513.] 

Contract,  for  the  board  and  expense  of  shoeing  a  horse.  Writ 
dated  March  15,  1892. 

The  case  was  submitted  to  the  Superior  Court,  and,  after  judgment 
for  the  defendant,  to  this  court,  on  appeal,  on  agreed  facts,  in  sub- 
stance as  folloVs: 

In  1886  the  defendant,  who  was  the  owner  of  a  mare  called  May- 
flower, said  to  her  son,  "You  take  Mayflower  and  keep  her  until  I 
call  for  her."  Her  son  thereupon  took  possession  of  the  mare,  and 
kept  it  until  its  death  in  1889,  and  paid  the  expense  of  keeping  it. 
In  1888  the  defendant's  son,  without  her  knowledge,  raised  a  colt 
from  the  mare,  and  in  1890,  without  her  knowledge  or  consent,  em- 
ployed the  plaintiff  to  keep  and  train  the  colt  for  a  carriage  horse, 
agreeing  to  pay  him  therefor  five  dollars  a  week  and  the  expense  of 
shoeing.  The  defendant  never  had  possession  of  the  colt,  and  never 
gave  any  directions  to  her  son  regarding  it,  but  after  its  birth  she 
learned  of  the  fact,  and  frequently  saw  it  in  the  possession  of  her  son. 

The  plaintiff  kept  the  colt  for  thirty-four  weeks,  and  expended  eight 
dollars  for  shoeing,  and  rendered  a  bill  therefor  to  the  defendant's 
son.  The  defendant  prior  to  the  commencement  of  this  action  had  no 
knowledge  of  the  contract  of  her  son  with  the  plaintiff. 

Holmes,  J.  Whether  the  colt  belonged  to  the  defendant  or  to  her 
son,  the  son  had  possession  of  it  for  his  own  benefit.  Putting  the 
ca.se  in  the  strongest  way  for  the  plaintiff,  the  defendant  did  no  more 
than  to  lend  the  colt  to  her  son.  She  did  not  know  of  the  contract 
with  the  plaintiff.  Her  son  did  not  purport  to  contract  on  her  behalf, 
nor  did  the  plaintiff  rely  upon  any  supposed  authority  from  her,  or 
render  the  services  on  her  credit.  When  one  person  lends  a  horse  to 
another  without  more,  he  does  not  authorize  the  latter  to  make  him 


CHAP,   I.]  WELSH   V.    WELSH.  307 

answerable  for  its  keep  or  improvement.  See  Storms  v.  Smith, 
137  Mass.  201;  Howes  v.  Newcomb,  146  Mass.  76,  80.  Possession 
alone  is  no  more  ostensible  authority  to  bind  the  owner  for  keeping 
and  training  than  it  is  to  sell,  apart  from  statute.  Even  if  circum- 
stances could  be  imagined  under  which,  without  an  actual  knowledge 
of  the  owner,  consent  might  be  implied  sufficient  to  create  a  lien  under 
Pub.  Sts.  c.  192,  §  32  (Lynde  v.  Parker,  155  Mass.  481),  there  is 
nothing  in  this  case  which  would  warrant  the  finding  of  an  actual 
contract  binding  on  the  defendant.  There  is  equally  little  ground 
for  charging  her  upon  a  fictitious  or  quasi-contract.  The  plaintiff 
furnished  his  services  under  a  valid  contract  with  the  son,  and  must 
look  to  him.^ 

Judgment  for  the  defendant. 


(h)  Plaintiff  intended  to  Benefit  Himself,  not  the  Defendant. 

V/ELSH  V.  WELSH. 

Supreme  Court  of  Ohio,  1835. 

[5  Hammond,  425.] 

Assumpsit  for  work,  labor,  materials  and  for  money  paid. 

The  facts  which  the  plaintiff  offered  to  prove  were  the  following: 
A  parol  agreement  was  made  between  the  plaintiff  and  defendant  (they 
being  brothers),  that  the  plaintiff  should  grant  to  the  defendant  by 
lease  or  purchase,  as  should  subsequently  be  agreed  between  them,  a 
piece  of  land,  being  mostly  wild,  of  about  five  acres,  for  the  purpose 
of  the  plaintiff's  erecting  a  fulling  mill  and  other  necessary  buildings, 
to  carry  on  the  business  of  dyeing,  fulling  and  manufacturing 
cloth,  &c.  In  pursuance  of  tbis  agreement,  the  defendant  gave  the 
plaintiff  possession  of  said  land,  and  the  plaintiff  went  on  and  erected 
with  the  knowledge  and  permission  of  the  defendant,  a  fulling  mill 
and  other  buildings  appurtenant  thereunto,  and  a  dwelling  house, 
stable,  &c.,  to  a  large  amount,  say  one  thousand  dollars.  After  these 
things  were  done  by  the  plaintifE,  the  defendant  sold  and  conveyed 
away  the  said  land,  with  all  the  erections  and  buildings,  without  the 

■If  plaintiff  cared  for  a  horse  bailed  witli  him  after  the  bailment  had  ter- 
minated by  express  declaration  of  owner  as  by  repudiation  of  owner;;hip, 
the  plaintiff  keeping  the  horse  thereafter  cannot  hold  the  owner  liable. 
Earle  v.  Coburn  (1881)  130  Mass.  596;  or  if  the  bailor  boarded  and  stabled 
a  horse  with  one  X  after  s\ich  termination  of  the  bailment,  the  owner 
is  not  liable  for  such  keep  either  to  X  or  the  plaintiff.  Keith  r.  De  Bus- 
signey  (1901)  179  Mass.  255.  See  Stokes  v.  Lewis  (1785)  1  T.  R.  20,  ante. 
p.  285.— Ed. 


308  WELSH   V.    WELSH,  [bOOK    II. 

consent  or  knowledge  of  the  plaintiff,  turned  him  out  of  possession 
and  put  his  grantee  in,  and  put  in  his  own  pocket  the  entire  avails  of 
the  labor,  money  and  expenses  of  the  plaintiff  on  the  said  premises. 

Hitchcock,  J.,  delivered  the  opinion  of  the  Court. 

The  question  for  the  consideration  of  the  Court  is,  whether,  upon  the 
proof  of  the  facts  stated,  the  plaintiff  would  have  a  right  to  recover 
in  this  form  of  action. 

The  contract  or  agreement  stated  by  the  plaintiff's  counsel  is  one 
of  no  ordinary  character.  It  is  not  one  by  which  the  parties  agree 
to  sell  or  lease  land,  but  that  they  will  at  some  future  period  agree 
that  one  or  the  other  shall  be  dbne.  The  terms  are  not  specified,  but 
are  left  for  future  arrangement.  No  price  is  fixed,  no  length  of  time 
for  which  a  lease  shall  run,  should  a  lease  be  agreed  upon,  no  time  in 
which  payment  shall  be  made.  Nothing  in  fact  but  that  the  plaintiff 
shall  go  into  possession,  proceed  with  his  works,  and  subsequently  all 
shall  be  made  right.  The  reason  why  the  business  was  thus  transacted 
is  to  be  found  probably  in  the  fact,  that  the  parties  were  brothers. 
But,  notwithstanding  the  loose  manner  in  which  this  agreement  was 
made,  I  cannot  doubt  that  a  Court  of  chancery  would  compel  the 
defendant  to  do  justice.  The  circumstance  that  there  was  no  writing, 
could  make  no  difference  in  such  Court.  Possession  was  taken  of  the 
land,  labor  was  performed,  money  expended,  and  it  would  be  a  fraud 
on  the  part  of  the  defendant  not  to  comply  with  the  contract.  The 
statute  was  made  not  to  encourage  but  to  prevent  frauds. 

It  does  not  follow  of  course,  that  because  chancery  migh  t  relieve  in 
a  case  like  the  present,  therefore  that  law  ivill  in  an  action  of 
assumpsit. 

This  action  is  founded  upon  the  supposition  that  there  was  a  con- 
tract which  the  plaintiff  had  a  right  to  rescind  in  consequence  of  the 
conduct  of  the  defendant.  From  the  facts  proposed  to  be  proved, 
there  can  be  no  doubt  the  plaintiff  had  a  right  to  rescind  this  con- 
tract. The  defendant  had  put  it  out  of  his  power  to  comply,  by  dis- 
posing of  the  property  to  a  third  person.  After  this  he  could  not  hold 
the  plaintiff  to  fulfil  on  his  part.  But  what  right  accrues  to  the 
plaintiff  by  rescinding?  The  law  is  well  settled,  that  where  a  vendee 
has  a  right  in  consequence  of  the  conduct  of  the  vender  to  rescind, 
he  may  do  it  and  recover  back  in  an  action  for  money  had  and  received, 
the  amount  paid  upon  the  contract.  1  Term,  133;  5  John.  85.  Upon 
this  point  there  is  no  controversy.  The  principle  is  admitted  l)y  the 
defendant's  counsel.  It  would  l)e  immaterial  whether  the  payment 
was  made  in  money,  or  made  in  merchandise,  or  in  work  and  labor. 
In  either  case  the  amount  paid  might  be  received,  and  upon  the  prin- 
ciple that  the  consideration  for  which  the  payment  Avas  made  had 
failed. 

In  the  present  case,  the  ol)ject  is  not  however  to  recover  for  any 
thing  which  was  paid  upon  the  contract,  for  nothing  was  paid.    It  is  to 


CHAP.    I.]  WELSH    V.    WELSH.  309 

recover  for  work  and  labor  done  by  tbe  plaintiff  for  his  own  use  and 
l)enefit,  while  he  was  in  possession  of  the  property.  A  payment  made 
to  a  vender  is  for  his  benefit.  But  when  this  labor  was  performed,  it 
was  not  for  the  benefit  of  the  vender,  nor  supposed  to  be  for  his 
benefit.  It  was  done  with  his  knowledge  and  approbation,  but  in- 
tended alone  for  the  use  of  the  plaintiff.  Altliough  done  with  the 
knowledge  of  the  vender,  it  was  not  done  even  at  his  request.  I  cannot 
see  then  upon  what  reason  the  principle  which  authorizes  a  vendee 
to  recover  back  money  paid  upon  a  contract  which  is  afterwards  re- 
scinded, can  be  applied  to  this  case.  It  seems  clear  that  it  is  an  effort 
to  extend  this  principle  to  a  new  class  of  cases.  No  authority  pre- 
cisely in  point  has  been  cited,  and  I  presume  no  one  favorable  to  the 
plaintiff's  claim  can  be  found.  The  case  of  Gillett,  adm'r  of  Clemens 
V.  Maynard,  5  John.  85,  is  somewhat  analogous  to  the  one  now  before 
the  Court.  In  that  case,  however,  money  had  been  paid  upon  the 
contract;  and  the  action  was  brought,  not  only  to  recover  back  this 
money,  but  also  to  receive  pay  for  the  improvements  made  while  the 
intestate  was  in  possession  of  the  land.  It  was  held  by  the  Court, 
that  the  contract  being  rescinded,  the  plaintiff  was  entitled  to  recover 
back  the  money  paid,  with  interest,  but  not  any  damages  for  the 
labor  he  had  bestowed  or  the  improvements  he  had  made.  Upon  this 
part  of  the  case  the  Court  say,  "The  plaintiff,  however,  ought  not 
to  have  received  any  compensation  for  the  improvements.  There  was 
no  express  or  implied  undertaking  by  the  defendant  to  pay  for  them. 
When  the  work  was  done  by  the  intestate,  it  was  for  his  own  benefit ; 
and  if  he  voluntarily  abandoned  his  contract,  without  any  stipulation 
for  the  improvements,  he  must  be  deemed  to  have  waived  all  claim 
to  them."  From  the  latter  clause  counsel  infer,  that  if  the  plaintiff's 
intestate  had  not  ahandoned  the  contract,  he  might  have  recovered 
compensation  for  the  improvements.  Upon  an  examination  of  the 
case,  however,  I  see  no  evidence  of  abandonment,  except  the  death 
of  the  vendee,  unless  the  circumstance  of  suing  to  recover  back  the 
money  paid,  furnishes  this  evidence.  If  the  case  of  Gillett  r.  Maynard 
be  law,  I  think  it  must  be  decisive  of  this  case.  Here  the  work,  when 
done,  was  done  for  the  plaintiff's  benefit.  There  is  no  proof  of  any 
express  promise,  nor  is  there  any  implied  promise  on  the  part  of  the 
defendant  to  pay  for  it. 

Further,  the  counsel  for  the  plaintiff  says,  "If  the  question  is,  what 
damages  have  been  sustained,  you  must  declare  on  the  special  con- 
tract; if  3'ou  go  for  the  original  consideration  paid,  you  rescind,  and 
may  rely  on  the  common  counts;"  and  in  sup])ort  of  this  position 
cites.  Tower  v.  Burrel,  1  Term,  133.  Apply  this  principle  to  the 
present  case  and  it  defeats  the  action.  The  plaintiff  does  not  "go  for 
the  original  compensation  paid,"  for  no  such  consideration  Avas  paid. 
The  real  object  is  to  recover  compensation  in  damages  for  the  labor 
performed.     The  plaintiff  seeks  to  rescind  the  contract  and  then  to 


310  WELSH    V.   WELSH.  [BOOK   II. 

recover  over  and  beyond  what,  according  to  the  rules  of  law,  as  I 
have  heretofore  understood  them,  he  has  a  right  to  recover  upon  that 
rescission.  And  no  good  reason  can  be  assigned  why  he  might  not  with 
equal  propriety  recover  to  any  extent,  damages  which  he  may  have 
sustained  in  consequence  of  the  failure  of  the  contract. 

Had  there  been  any  express  promise  proven  to  pay  for  these  im- 
provements, the  case  would  have  been  different.  I  conceive  that  there 
would  be  a  moral  obligation  to  constitute  a  sufficient  consideration  for 
such  promise.  The  Supreme  Court  of  the  State  of  New  York,  in  the 
case  of  Frew  v.  Hardenburgh,  5  John.  272,  holds  differently.  But 
in  that  case  the  plaintiff  took  possession  of  the  land  without  the  con- 
sent of  the  defendant,  and  held  that  possession  until  ousted  by  an 
action  of  ejectment.  As  there  is  no  express,  so  neither  is  there  any- 
thing, from  which  to  imply  a  promise,  unless  we  establish  the  broad 
principle  that,  where  there  is  a  contract  for  the  sale  of  land,  and  the 
contract  fails  in  consequence  of  an  act  of  the  vender,  the  vendee  can 
recover  pay  for  the  improvements  made,  in  an  action  for  work  and 
labor.  I  am  not  willing  to  establish  this  principle.  It  is  not  neces- 
sary for  the  furtherance  of  justice.  The  law  provided  a  complete  and 
adequate  remedy  in  an  action  upon  the  contract ;  and  I  cannot  consent 
to  give  a  new  remedy  for  the  purpose  of  saving  this  action. 

Xo  difference  can  be  made  in  consequence  of  this  contract  having 
been  by  parol.  This  is  not  the  fault  of  the  law  but  of  the  parties.  If 
the  plaintiff  has  been  improvident  in  entering  into  the  contract,  the 
Court  cannot  with  propriety  change  any  known  rule  of  law  to  help 
him  out  of  his  difficulty. 

I  am  aware  that  it  is  said  that  the  action  of  assumpsit  is  as  broad  as 
a  bill  of  equity.  But  it  does  not  follow  that  if  a  plaintiff  could  have 
redress  in  a  Court  of  quity,  he  can  therefore  have  redress  in  a  Court 
of  law,  provided  he  sues  in  assumpsit.  Nor  does  it  follow  that  because 
a  plaintiff  has  an  equitable  claim  against  the  defendant,  he  can  enforce 
this  claim  if  he  sues  in  assumpsit.  If  he  prosecutes  his  suit  in  a 
Court  of  law,  he  must  in  assumpsit,  as  well  as  any  other  form  of 
action,  show  that  he  has  a  legal  right  of  action.  When  this  is  shown, 
the  action  will  be  governed  by  equitable  principles. 

As  it  would  seem  to  be  just  that  the  plaintiff  should  receive  a  com- 
pensation for  his  improvements,  we  have  reflected  whether  he  might 
not  recover  upon  the  money  counts,  upon  the  ground  that  the  defend- 
ant has  received  money  for  the  improvements  made  by  the  plaintiff, 
with  which  he  might  be  charged  as  having  received  it  to  his  use.  But 
in  this  view  of  the  case  there  is  great,  and  as  it  appears  to  me,  insuper- 
able difficulty. 

The  interest  of  the  plaintiff  in  the  premises  is  an  equitable  interest. 
Of  this  interest  the  defendant  could  not  deprive  him  unless  with  his 
own  consent.  The  legal  estate  alone  was  in  the  defendant ;  and  if  he 
transferred  the  land,  it  must  be  subject  to  the  plaintiff's  equity, 


CHAP.    I.]  WELSH    V.    WELSH.  311 

especially  if  transferred  to  a  person  having  notice  of  this  equity. 
Xow  the  case  shows,  that  when  this  land  was  sold  the  plaintiff  was 
in  possession.  The  purchaser  then  must  be  chargeable  with  notice 
of  all  his  rights.  If  so,  then  this  equity  may  still  be  enforced.  The 
plaintiff  has  been  deprived  of  nothing  but  the  possession,  and  to  be 
restored  to  this,  he  must  apply  to  the  proper  tribunal  in  the  proper 
way.  He  may  apply  to  a  Court  of  chancery  for  a  specific  perform- 
ance of  the  contract;  and  if  there  has  been  no  laches  on  his  part,  I 
see  no  difficulty  in  his  obtaining  a  decree,  either  in  a  specific  perform- 
ance, or  for  a  compensation,  as  the  merits  of  the  case  when  presented 
may  seem  to  require. 

Upon  the  whole,  a  majority  of  the  Court  are  of  opinion,  that  the 
nonsuit  was  properly  ordered,  and  that  the  plaintiff  take  nothing  by 
his  motion. 

Wright,  J.  My  opinion  does  not  accord  with  that  of  my  brethren 
in  this  case.  If  the  evidence  offered  was  admissible  under  the  issue, 
the  nonsuit  should  be  set  aside.  It  is  admissible,  if  it  tend  to  prove 
the  issue.  The  declaration  is  for  ivorTc,  &c.,  in  building  a  fulling 
mill,  &c.,  for  the  defendant ;  for  board,  &c.,  furnished  and  paid  for  self 
and  hands;  for  labor  generally;  for  money  paid,  and  had,  and 
received,  and  on  account  stated.     Issue  is  taken  upon  non-assumpsit. 

The  plaintiff  offered  to  prove,  that  the  defendant  agreed  with  him  to 
grant  him,  on  a  lease  or  purchase,  as  should  be  subsequently  settled 
between  them,  about  five  acres  of  land,  for  the  purpose  of  erecting 
a  fulling  mill,  &c.,  and  other  buildings  for  manufacturing  cotton, 
and  put  the  plaintiff  into  possession,  under  the  agreement;  and  that 
the  plaintiff  built,  with  the  knowledge  and  permission  of  the  defend- 
ant, the  mill  and  other  buildings,  to  the  value  of  one  thousand 
dollars,  which  he  paid  two  workmen  for ;  when  the  defendant,  without 
the  consent  or  knowledge  of  the  plaintiff,  sold  the  land  and  improve- 
ment, received  the  pay  for  them,  turned  the  plaintiff  out  of  posses- 
sion, and  put  the  purchaser  in.  The  labor  and  expenditures  by  the 
plaintiff  were  on  the  defendant's  land.  A  jury  would  be  warranted 
in  inferring,  from  the  fact  of  the  work  being  so  done,  that  it  was 
done  for  the  defendant,  and  to  oblige  him  to  pay  what  they  were 
worth.  The  evidence  offered  conduced  directly  to  prove  the  issue,  and 
should  have  been  received.  \Miether  the  work  was  done  and  the 
money  paid  under  a  special  agreement,  which  was  open  and  subsisting, 
was  a  matter  of  fact  to  be  proven  before  the  jury.  The  ability  to 
prove  that  state  of  things,  would  not  have  the  effect  to  exclude  evi- 
dence proper  when  offered.  That  there  had  been  a  special  contract 
between  the  parties  upon  the  subject  of  the  suit,  would  not  destroy 
the  right  to  recover,  in  the  common  counts,  unless  open  and  subsisting, 
and  the  suits  were  to  recover  damages  arising  out  of  a  breach  of  the 
contract.  But  when  a  defendant  refuses  to  execute  a  special  contract, 
he  is  not  permitted  to  set  up  that  as  a  pretext  for  retaining  what  he 


312  WELSH    V.    WELSH,  [BOOK    II. 

has  received  in  payments  under  it;  in  such  cases,  the  plaintiff  may 
hold  the  contract  abandoned,  and  recover  on  the  common  counts. 
12  John.  E.  275;  7  J.  R.  132;  1  Ohio  R.  363;  7  T.  R.  177. 

So  where  the  defendant  has  been  guilty  of  fraud,  as  to  the  special 
contract,  the  plaintiff  may  consider  it  void,  and  recover  on  the  common 
counts.  15  John.  R.  475;  6  John.  R.  110;  1  Com.  on  Con.  38;  1  Esp. 
R.  208 ;  2  Esp.  R.  640. 

So  also  where  the  contract  is  rescinded,  or  has  been  executed  by  the 
plaintiff,  or  put  an  end  to  by  defendant,  the  plaintiff  may  disregard 
the  contract,  and  resort  to  the  common  counts  in  assumpsit,  to  recover 
what  he  has  paid.  7  Cranch  Rep.  299  ;  4  Bos.  &  Pul.  351 ;  6  T.  R.  136 ; 
5  John.  R.  84;  Bui.  N.  P.  139;  18  John.  R.  455;  11  Wheat.  R.  250; 
10  John.  R.  37;  2  Mass.  R.  415;  Com.  on  Con.  317;  Newman  v. 
McGregor,  ante,  349.  And  it  is  not  necessary  to  give  positive  evidence 
of  money  had  and  received,  but  when,  from  the  facts  proved,  it  may 
be  fairly  presumed  the  action  is  maintained.  Doug.  R.  137.  The 
action,  says  Lord  Mansfield  (Cowp.  R.  807),  "is  governed  by  the 
most  liberal  equity.  Neither  party  is  allowed  to  trap  the  other  in 
form." 

Whether  there  was  in  fact,  a  special  contract  between  these  parties 
at  all,  or  one  still  open,  or  that  had  originated  in  fraud  by  defendant, 
or  which  he  had  put  an  end  to  or  rescinded,  or  whether  the  plaintiff 
had  fulfilled,  and  whether  anything  had  been  paid  by  the  plaintiff 
upon  it  in  money,  labor  or  board,  were,  in  my  opinion,  questions  of 
fact,  and  should  have  been  left  to  the  jury  upon  the  proof,  on  broad 
and  liberal  principles  of  equity.  11  Wheat.  R.  250.  I  am  there- 
fore on  that  ground  for  opening  up  the  nonsuit  and  allowing  a  new 
trial.  I  incline  to  go  much  farther  than  is  necessary  to  decide  this 
case,  and  to  hold,  that  wherever  one  man  has  availed  himself  of  the 
labor,  goods  or  money  of  another,  recovery  may  be  had  in  this  form 
of  action,  for  just  what  in  equity  and  good  conscience  the  party  is 
entitled  to,  all  things  considered;  subject  only  to  this  liinitation,  that 
whore  there  was  a  contract  price,  no  recovery  shall  be  had  for  a  greater 
sum  than  the  one  stipulated  for.  I  can  see  no  evil,  or  inconvenience, 
that  would  result  from  this.  A  recovery  in  this  form  would  be  as 
perfect  a  bar  to  a  subsequent  action,  as  if  had  in  a  suit  upon  the 
special  contract,  and  each  party  may  obtain  a  full  statement  of  the  real 
cause  of  action,  by  demand  for  a  bill  of  particulars  under  our  law. 
The  proceeding  is  a  simple  one,  and  looks  directly  to  the  attainment 
of  justice.  Why,  then,  in  such  cases  turn  a  plaintiff  roimd  into  a 
Court  of  Chancery,  or  to  a  suit  upon  the  specinl  contract?^ 

>Accord:  Gillot  t\  Maynard  (1S09)  .'5  -Johns.  85;  Shreve  v.  Grimes  (1823) 
4  Littoll,  220;  ^Mathews  v.  Davis  (1843)  0  Hiimjih.  324,  to  the  cflfeet  that  the 
vendee's  remedy  is  not  at  law  in  an  action  of  assumpsit,  but  solely  in  equity, 
as  in  Bright  v.  Boyd  (1841)   1  Story,  478. 

If  the  vendee  in  possession  refuses  to  complete  the  purchase,  although  the 


CHAP.    I.]  BARLOW    V.    BELL.  313 

BARLOW  V.  BELL. 

Court  of  Appeals  or  Kentucky,  1818. 

[1  Marshall  34G.] 

Judge  Owsley  delivered  the  opinion  of  the  court. 

Some  time  early  in  1801,  the  appeUant  purchased  from  a  certain 
John  Bell,  who  acted  as  the  agent  of  his  father,  William  Bell,  a  tract 
of  land  in  Barren  county,  and  having  ohtained  from  the  agent  a  deed 
of  conveyance,  he  settled  upon  the  land,  and  made  lasting  and  valuable 
improvements. 

■Whilst  the  appellant  was  thus  possessed  of  the  land,  but  after  the 
appellee's  husband,  William  Bell,  had  departed  this  life,  shg^-asaerting 
titje  in  her  own  right,  brought  suit,  and  finally  succeed  ed  i  n  rpcoYPr i  ng 
the  land. 

To-<)btain  compeasa^ioa-for-Ms-iffipgo¥e^ments,  the  appellant  then 
brought  this  suit  in_equit^,  but  the  court  being  of  opinion  his  claim 
could  noFbe" sustainedTdismissed  his  bill  with  costs;  and  from  that 
decree  the  appellant  has  appealed  to  this  court. 

As  the  labor  bestowed  in  improving  the  land  is  sunk  in  the  land,  and 
M^as  not  done  at  the  appellee's  request,  it  is  plain  that  she  cannot,  upon 
any  common  law  proceeding,  be  subjected  to  the  appellant's  claim  for 
compensation. 

Nor  have  we  been  able  to  find  any  adjudged  case,  where  the  English 
courts  of  equity  have,  under  such  circumstances,  decided  upon  the  right 
to  compensation;  but  regarding  courts  of  equity,  in  supplying  the 
defects  of  the  common  law,  as  being  governed  by  the  principles  of 
natural  justice,  in  the  absence  of  all  precedent,  we  should  have  no 
hesitation  in  relieving  the  possessor  for  improvements  made  upon 
the  land  whilst  he,  ho7ia  fide,  considered  it  his  own.  The  possessor, 
by  bestowing  his  money  and  labor  in  meliorating  the  land,  advances 
its  value,  and,  consequently,  the  rightful  owner,  unless  liable  to  the 
claim  of  compensation,  is  so  much  gainer  by  the  loss  of  the  possessor ; 
contrary  to  the  maxim,  tiemo  debit  locupletari  aliena  jacttira. 

But  to  bring  himself  within  the  influence  of  this  principle,  it  is  not 
enoiigh  that  the  possessor  shows  himself  to  have  meliorated  the  land, 
but  his  money  and  labor  must  be  bestowed  under  an  honest  conviction 
of  his  being  the  rightful  owner  of  the  land.    For  if  he  takes  possession 

vendor  was  both  willinc;  and  ready  to  pass  title,  the  authorities  deny  any  allow- 
ance for  improvements.  Rainer  v.  Huddlcston  (1871)  4  Heisk.  223;  Guthrie  r. 
Holt  (187G)   9  Box.  527. 

If  the  value  of  the  land  is  not  enhanced,  there  should  be  no  allowance  for 
the  alleged  improvements.  Worthington  v.  Young  (1838)  8  Oh.  401;  Vaughau 
V.  Cravens    (1858)    1   Head,   108.— Ed. 


314:  BRIGHT  V.  BOYD.  •  [bOOK   II. 

without  title,  and  knowing  the  land  belongs  to  another,  he  is  himself 
guilty  of  a  wrong,  and  although  he  may  have  expended  his  money,  and 
bestowed  his  labor,  his  claim  for  compensation  ought  not  to  be 
sanctioned  by  a  court  of  equity;  but  in  such  a  case  the  maxim, 
volunti  non  fit  injuria,  well  applies. 

As  in  the  present  ease,  therefore,  the  appellant  is  shown  to  have  had 
a  perfect  knowledge  of  the  appellee's  title,  and  was  advised  of  the  con- 
sequences of  a  purchase  from  the  agent  of  William  Bell,  before  he  made 
the  purchase,  he  cannot  be  viewed  in  the  favorable  attitude  of  a  hona 
fide  possessor,  so  as  to  warrant  the  decree  of  a  court  of  equity  in 
his  favor  for  improvements  made  upon  the  land. 

The  decree  of  the  court  below,  dismissing  his  bill,  is,  consequently, 
correct,  and  must  be  affirmed  with  cost. 


Scroggs  v.  Taylor  (1818)  1  Marsh.  247. 

Judge  Owsley  delivered  the  opinion  of  the  court. 

The  appellant,  not  having  settled  upon  the  jand^junder  any  contract 
with  either  of  theV[2pellees7^r  those  through  whom  they  claim,  but 
under JJie_ mlstakeiL jmpression~of The  Tan"d~t)eing  witjiinjthe  adverse 
claim  of  Craig,  purchased  and  settled  under  him.  The  court  below, 
no  doubt,  decided  correctry~rn  retiising'^  to  compel  the  appellees  to 
make  compensation  for  the  improvements  made  upon  the  land  after 
notice  of  their  claim,  and  properly  dismissed  the  appellant's  bill, 
with  cost. 

The  decree  must  be  affirmed,  with  cost.^ 


BEIGHT  V.  BOYD. 

Circuit  Court  of  the  United  States,  1841. 

[1  Story,  478.] 

Bill  in  equity.  The  defendant  recovered  judgment  in  a  suit  at  law 
against  the  plaintiff  for  possession  of  an  estate  which  the  plaintiff 
claimed  to  own  by  intermediate  conveyances  under  an  administration 
sale.  The  defect  in  the  plaintiff's  title  was  due  to  the  failure  of  the 
administrator  to  file  a  bond  as  required  by  law.  The  plaintiff,  at  the 
time  ofhis  purchase,  supposed  that  this  bond  had"  been'liled,  and 

Wide  ante.  Barlow  v.  Bell. 

=A  still  earlier  case  is  Whitledge  v.  Wait  (1804)  Sneed  (Ky.)  335.  See 
notes  to  next  case. — Ed. 


CHAP.    I.]  BRIGHT  V.  BOYD.  315 

he  seeks  to  recover  compensation  for  permanent  improveraents-iaade 
upon  and  greatly  enhancing  the  value__of  the  estajtg.^ 

Story,  J .  The  case,  then,  fesoTvesTteelf ^  into  the  mere  considera- 
tion, whether  the  plaintiff  is  entitled  to  any  allowance  for  the  improve- 
ments made  by  him,  or  by  those  under  whom  he  claims  title,  so  far 
as  those  improvements  have  been  permanently  beneficial  to  the  defend- 
ant and  have  given  an  enhanced  value  to  the  estate.  There  is  no  doubt 
thai. the,  plaintiff  in  the  present  bill  is  a  bona  ;?(ie  purchaser  for  a  valu= 
able -consideration,  without  noliciLQijinj^ilefect  in  his  title.  Indeed,  he 
seems  to  have  had  every  reason  to  believe  that  it  was  a  valid  and 
perfect  title;  and  this  also  seems  to  have  been  the  predicament  of  all 
the  persons  who  came  in  under  the  title  by  the  administration  sale; 
for  it  is  not  pretended  that  any  one  of  them  had  actual  notice  that 
no  bond  was  given  to  the  judge  of  probate  previous  to  the  sale.  And, 
indeed,  all  of  them,  including  the  purchaser  at  the  sale,  acted  upon  the 
entire  confidence  that  all  the  prerequisites  necessary  to  give  validity  of 
the  sale  had  been  strictly  complied  with.  The  original  purchaser  was, 
if  at"  all,  affected  only  by  the  constructive  notice  which  put  him  upon 
inquiry  as  to  the  facts  necessary  to  perfect  the  right  to  sell.  The 
statute  of  Maine  of  37th  of  June,  1820,  ch.  47,  commonly  called 
the  Betterment  Act,  will  not  aid  the  plaintiff;  for  that  statute  applies 
only  to  cases  where  the  tenant  has  been  in  actual  possession  of  the 
lands  for  six  years  or  more  before  the  action  brouglit  by  virtue  of  a 
possession  and  improvement,  which  term  had  not  elapsed  when  this 
writ  of  entry  was  brought.  So  that  in  fact  the  whole  reliance  of 
the  plaintiff  must  be  upon  the  aid  of  a  court  of  equity  to  decree  an 
allowance  to  him  for  the  improvements  made  by  him  and  those  under 
whom  he  claims,  upon  its  own  independent  principles  of  general 
justice. 

Two  views  are  presented  for  consideration.  First,  that  the  defend- 
ant has  lain  by  and  allowed  the  improvements  to  be  made  without 
giving  any  notice  to  the  plaintiff,  or  to  those  under  whom  he  claims, 
of  any  defect  in  their  title;  which  of  itself  constitutes  a  just  ground 
of  relief.  Secondly,  that  if  the  defendant  is  not,  by  reason  of  his 
minority  and  residence  in  another  State  at  the  time,  affected  by  this 
equity,  as  a  case  of  constructive  fraud  or  concealment  of  title;  yet 
that,  as  the  improvements  were  made  bona  fide  and  without  notice 
of  any  defect  of  title,  and  have  permanently  enhanced  the  value  of 
the  lands,  to  the  extent  of  such  enhanced  value  the  defendant  is  bound 
in  conscience  to  make  compensation  to  the  plaintiff  ex  crqiio  et  bono. 

In  regard  to  the  first  point,  it  has  been  well  remarked  by  Sir 
William  Grant  (then  Master  of  the  Rolls),  in  Pilling  v.  Armitage, 

'This  statement  of  facts,  containinfr  all  that  is  necessary  to  an  understand- 
ing of  the  case,  has  been  substituted  for  the  statement  found  in  the  report. — Ed. 
•Only  so  much  of  the  opinion  is  given  as  relates  to  this  question. — Ed. 


316  BRIGHT  V.   BOYD.  [BOOK  II. 

12  Yes.  8-1,  85,  "Tliat  there  are  different  positions  in  the  books  with 
regard  to  the  sort  of  equity  arising  from  laying  out  money  upon 
another's  estate  through  inadvertence  or  mistake;  that  person  seeing 
that,  and  not  interfering  to  put  the  party  upon  his  guard.  The  case 
with  reference  to  that  proposition,  as  ordinarily  stated,  is  that  of 
building  upon  another  man's  ground.  That  is  a  case  which  supposes 
a  total  absence  of  title  on  the  one  side,  implying,  therefore,  that  the 
act  must  be  done  of  necessity  under  the  influence  of  mistake;  and 
undoubtedly  it  may  be  expected  that  the  party  should  advertise  the 
other  that  he  is  acting  under  a  mistake."  The  learned  judge  is 
clearly  right  in  this  view  of  the  doctrine ;  and  the  duty  of  compensa- 
tion in  such  cases,  at  least  to  the  extent  of  the  permanent  increase 
of  value,  is  founded  upon  the  constructive  fraud,  or  gross  negligence, 
or  delusive  confidence  held  out  by  the  owner;  for  under  siich  circum- 
stances the  maxim  applies:  Qui  tacct,  consentire  videtur ;  Qui  potest, 
et  debet  vetare,  juhct,  si  non  veiat}  Whether  this  doctrine  is  applic- 
able to  minors  who  stand  by  and  make  no  objection,  and  disclose  no 
adverse  title,  having  a  reasonable  discretion  from  their  age  to  under- 
stand and  to  act  upon  the  subject ;  and  whether,  if  under  guardianship, 
the  guardian  would  be  bound  to  disclose  the  title  of  his  ward;  and 
how  far  the  latter  would  be  bound  by  the  silence  or  negligence  of  his 
guardian;  and  whether  there  is  any  just  distinction  between  minors 
living  within  the  State  and  minors  living  without  the  State, — these 
are  questions  of  no  inconsiderable  delicacy  and  importance,  upon 
which  I  should  not  incline  to  pass  any  absolute  opinion  in  the  present 
state  of  the  cause,  reserving  them  for  further  consideration,  when 
all  the  facts  shall  appear  upon  the  report  of  the  Master.  There  are 
certainly  cases  in  which  infants  themselves  will  be  held  responsible 
in  courts  of  equity  for  their  fraudulent  concealments  and  misrepre- 
sentations whereby  other  innocent  persons  are  injured." 

The  other  question,  as  to  the  right  of  the  purchaser,  hona  fide  and 
for  a  valuable  consideration,  to  compensation  for  permanent  improve- 
ments made  upon  the  estate  which  have  greatly  enhanced  its  value, 
under  a  title  which  turns  out  defective,  he  having  no  notice  of  the 
defect,  is  one  upon  which,  looking  to  the  authorities,  I  should  be 
inclined  to  pause.  Upon  the  general  principles  of  courts  of  equity, 
acting  ex  requo  et  hono,  I  own  that  there  does  not  seem  to  me  any 
just  ground  to  doubt  that  compensation,  under  such  circumstances, 
ought  to  be  allowed  to  the  full  amount  of  the  enhanced  value,  upon 
the  maxim  of  the  common  law.  Nemo  debet  lontpletari  ex  nlferius 
incommodo :  or,  as  it  is  still  more  exactly  expressed  in  the  Digest, 
Jure  naiurev  aujuum  est,  neminem  cum  alterius  dctrimeiifo  et  injuria 

'Sec  1  Story,  Hq.  Jiir.  §§  388,  389,  390,  391;  Green  v.  Biddlc,  8  Wheat.  1,  77, 
78;  1  IMadd.  Ch.  209,  210. 

=See  1  Story,  Eq.  Jur.  §385;  1  Fonbl.  Eq.  Jur.  B.  I.  ch.  3,  §4;  Savage  v. 
Foster,  9  Brod.  35, 


CHAP.    I.]  BRIGHT  V.  BOYD.  317 

fieri  locupletiorem}  I  am  aware  that  tlio  doctrine  has  not  as  yet  been 
carried  to  such  an  extent  in  our  courts  of  equity.  In  cases  where 
the  true  owner  of  an  estate,  after  a  recovery  thereof  at  law  from  a 
bona  fide  possessor  for  a  valuable  consideration  without  notice,  seeks 
an  account  in  equity  as  plaintiff,  against  such  possessor,  for  the  rents 
and  profits,  it  is  the  constant  hal)it  of  courts  of  equity  to  allow  such 
possessor  (as  defendant)  to  deduct  therefrom  the  full  amount  of  all 
the  meliorations  and  improvements  which  he  has  beneficially  made 
upon  the  estate ;  and  thus  to  recoup  them  from  the  rents  and  profits.^ 
So,  if  the  true  owner  of  an  estate  holds  only  an  equitable  title  thereto, 
and  seeks  the  aid  of  a  court  of  equity  to  enforce  that  title,  the  court 
will  administer  that  aid  only  upon  the  terms  of  making  compensa- 
tion to  such  hona  fide  possessor  for  the  amount  of  his  meliorations 
and  improvements  of  the  estate,  beneficial  to  the  true  owner.^  In  each 
of  these  cases  the  court  acts  upon  an  old  and  established  maxim  in  its 
jurisprudence,  that  he  who  seeks  equity  must  do  equity.*  But  it  has 
been  supposed  that  courts  of  equity  do  not,  and  ought  not,  to  go 
further,  and  to  grant  active  relief  in  favor  of  such  a  bona  fide 
possessor  making  permanent  meliorations  and  improvements,  by  sus- 
taining a  bill  brought  by  him  therefor  against  the  true  owner  after 
he  has  recovered  the  premises  at  law.  I  find  that  Mr.  Chancellor 
Walworth,  in  Putnam  v.  Eitchie,  6  Paige,  390,  403,  40-i,  405,  enter- 
tained this  opinion,  admitting  at  the  same  time  that  he  could  find  no 
case  in  England  or  America  where  the  point  had  been  expressed  or 
decided  either  way.  Now,  if  there  be  no  authority  against  the  doctrine, 
I  confess  that  I  should  be  most  reluctant  to  be  the  first  judge  to  lead 
to  such  a  decision.  It  appears  to  me,  speaking  with  all  deference  to 
other  opinions,  that  the  denial  of  all  compensation  to  such  a  hona  fide 
purchaser  in  such  a  case,  where  he  has  manifestly  added  to  the  per- 
manent value  of  an  estate  by  his  meliorations  and  improvements, 
without  the  slightest  suspicion  of  any  infirmity  in  his  own  title,  is 
contrary  to  the  first  principles  of  equity.  Take  the  case  of  a  vacant 
lot  in  a  city,  where  a  bona  fide  purchaser  builds  a  house  thereon, 
enhancing  the  value  of  the  estate  to  ten  times  the  original  value  of 
the  land,  under  a  title  apparently  perfect  and  complete ;  is  it  reason- 
able or  just  that  in  such  a  case  the  true  owner  should  recover  and 
possess  the  whole  without  any  compensation  whatever  to  the  bona  fide 
purchaser?  To  me  it  seems  manifestly  unjust  and  inequitable  thus 
to  appropriate  to  one  man  the  property  and  money  of  another,  who 
is  in  no  default.  The  argument,  I  am  aware,  is  that  the  moment 
the  house  is  built  it  lielongs  to  the  owner  of  the  land  by  mere  opera- 

»Dig.  lib.  50,  tit.  17,  1.  20fl. 

■2   Story,   Eq.   Jur.   §§  TOOa,    TOOb.    1237.    1238,    1239;    Green   v.    Biddle,   8 
Wheat.  77,  78,  79,  80.  81. 

'See  also  2  Story,  Eq.  Jur.  §  199b  and  note;  Id.  §§  1237,  1238. 
'Ihid. 


318  BRIGHT  V.  BOYD.  [bOOK    II. 

tion  of  law;  and  that  he  may  certainly  possess  and  enjoy  his  own. 
But  this  is  merely  stating  the  technical  rule  of  law,  by  which  the 
true  owner  seeks  to  hold  what,  in  a  just  sense,  he  never  had  the  slight- 
est title  to,  that  is,  the  house.  It  is  not  answering  the  objection,  but 
merely  and  dryly  stating  that  the  law  so  holds.  But  then,  admitting 
this  to  be  so,  does  it  not  furnish  a  strong  ground  why  equity  should 
interpose  and  grant  relief? 

I  have  ventured  to  suggest  that  the  claim  of  the  bona  fide  purchaser 
under  such  circumstances  is  founded  in  equity.  I  think  it  founded 
in  the  highest  equity ;  and  in  this  view  of  the  matter  I  am  supported 
by  the  positive  dictates  of  the  Koman  law.  The  passage  already  cited 
shows  it  to  be  founded  in  the  clearest  natural  equity.  Jure  naturae 
cequum  est.  And  the  Eoman  law  treats  the  claim  of  the  true  owner, 
without  making  any  compensation  under  such  circumstances,  as  a 
case  of  fraud  or  ill  faith.  Certe,  say  the  Institutes,. ilhid  constat; 
si  in  possessione  constituto  cedificatore,  soli  Dominus  petat  domum 
suam  esse,  me  solvat  pretium  materice  et  mercedes  fahrorum;  posse 
eum  per  exceptionem  doli  mail  repelli;  utique  si  honce  fidei  possessor, 
qui  cedificavit.  Nam  scienti,  alienum  solum  esse,  potest  ohjici  culpa, 
quod  cedificaverit  temere  in  eo  solo,  quod  intelligehat  alienum  esse} 
It  is  a  grave  mistake,  sometimes  made,  that  the  Eoman  law  merely 
confined  its  equity  or  remedial  justice  on  this  subject  to  a  mere 
reduction  from  the  amount  of  the  rents  and  profits  of  the  land.^  The 
general  doctrine  is  fully  expounded  and  supported  in  the  Digest, 
where  it  is  applied,  not  to  all  expenditures  upon  the  estate,  but  to 
such  expenditures  only  as  have  enhanced  the  value  of  the  estate 
{quatenus  pretiosior  res  facta  est),^  and  beyond  what  he  has  been 
reimbursed  by  the  rents  and  profits.*  The  like  principle  has  been 
adopted  into  the  law  of  the  modern  nations  which  have  derived  their 
jurisprudence  from  the  Eoman  law;  and  it  is  especially  recognized 
in  France  and  enforced  by  Pothier,  with  his  accustomed  strong  sense 
of  equity,  and  general  justice,  and  urgent  reasoning.''.  Indeed,  some 
jurists,  and  among  them  Cujacius,  insist,  contrary  to  the  Eoman  law, 
that  even  a  mala  fide  possessor  ought  to  have  an  allowance  of  all 
expenses  which  have  enhanced  the  value  of  the  estate,  so  far  as  the 
increased  value  exists.' 

>Just.  Tnst.  lib.  2,  tit.  1,  §§30,  32;  2  Story  Eq.  Jur.  §799,  b;  Vinn.  Com. 
ad  Tnst.  lib.  2,  tit.  1,  §  30,  n.  3,  4,  pp.  194,  195. 

*See  Green  v.  Biddle,  8  Wheat.  79,  80. 

^Dig.  lib.  20,  tit.  1,  1.  29,  §  2;  Dig.  lib.  6,  tit.  1,  1.  65;  Id.  1.  38;  Pothier 
Pand.  lib.  6,  tit.  1,  n.  43,  44,  45,  46,  48. 

*Dig.  lib.  G,  tit.  1,  1.  48. 

"Pothier  De  la  Propriety,  n.  343  to  n.  353;  Code  Civil  of  France,  art.  552, 
555. 

•Pothier  De  la  Propriete,  n.  350;  Vinn.  ad  Inst.  lib.  2,  tit.  1.  1.  30,  n.  4, 
p.  195. 


CHAP.    I.  I  BRIGHT  V.  BOYD.  319 

The  law  of  Scotland  has  allowed  the  like  recompense  to  bona  fide 
possessors  making  valuable  and  permanent  improvements;  and  some 
of  the  jurists  of  that  country  have  extended  the  benefit  to  mala  fide 
possessors  to  a  limited  extent.^  The  law  of  Spain  affords  the  like 
protection  and  recompense  to  bona  fide  possessors,  as  founded  in 
natural  justice  and  equity.^  Grotius,  Puffendorf,  and  Rutherford 
all  affirm  the  same  doctrine,  as  founded  in  the  truest  principles  ex 
cequo  et  bono.^ 

There  is  another  broad  principle  of  the  Roman  law  which  is 
applicable  to  the  present  case.  It  is,  that  where  a  bona  fide  possessor 
or  purchaser  of  real  estate  pays  money  to  discharge  any  existing 
incumbrance  or  charge  upon  the  estate,  having  no  notice  of  any 
infirmity  in  his  title,  he  is  entitled  to  be  repaid  the  amount  of  such 
payment  by  the  true  owner,  seeking  to  recover  the  estate  from  him.* 
Now,  in  the  present  case,  it  cannot  be  overlooked  that  the  lands  of 
the  testator  now  in  controversy,  were  sold  for  the  payment  of  his  just 
debts  under  the  authority  of  law,  although  the  authority  was  not 
regularly  executed  by  the  administrator  in  his  mode  of  sale,  by  a 
non-compliance  with  one  of  the  prerequisites.  It  was  not,  therefore, 
in  a  just  sense,  a  tortious  sale;  and  the  proceeds  thereof,  paid  by  the 
purchaser,  have  gone  to  discharge  the  debts  of  the  testator,  and  so  far 
the  lands  in  the  hands  of  the  defendant  (Boyd)  have  been  relieved 
from  a  charge  to  which  they  were  liable  by  law.  So  that  he  is  now 
enjoying  the  lands  free  from  a  charge  which,  in  conscience  and 
equity,  he  and  he  only,  and  not  the  purchaser,  ought  to  bear.  To 
the  extent  of  the  charge  from  which  he  has  been  thus  relieved  by 
the  purchaser,  it  seems  to  me  that  the  plaintiff,  claiming  under  the 
purchaser,  is  entitled  to  reimbursement  in  order  to  avoid  a  circuity 
of  action  to  get  back  the  money  from  the  administrator  and  thus 
subject  the  lands  to  a  new  sale,  or,  at  least,  in  his  favor,  in  equity 
to  the  old  charge.  I  confess  myself  to  be  unwilling  to  resort  to  such 
a  circuity  in  order  to  do  justice  where,  upon  the  principles  of  equity, 
the  merits  of  the  case  can  be  reached  by  affecting  the  lands  directly 
with  a  charge  to  which  they  are  ex  cequo  et  bono,  in  the  hands  of 
the  present  defendant,  clearly  liable. 

These  considerations  have  been  suggested  because  they  greatly  weigh 
in  my  own  mind  after  repeated  delil^erations  on  the  subject.  They, 
however,  will  remain  open  for  consideration  upon  the  report  of  the 

»Bell  Comm.  on  Law  of  Scotland,  p.  139,  §  538;  Ersk.  Inst.  b.  3,  tit.  1,  §  11 ; 
1  Stair  Inst.  b.  1,  tit.  8,  §  (>. 

n  Mor.  &  Carl.  Partid.  b.  3,  tit.  28,  1.  41,  pp.  357,  358;  Asa  &  Manuel, 
Inst,  of  Laws  of  Spain.  102. 

^Grotius,  b.  2.  eh.  10.  §§  1.  2.  3;  Puirend.  Law  of  Nat.  &  Nat.  b.  4.  ch.  7, 
§  61  :  Rutherf.  Inst.  b.  1.  ch.  0.  §  4.  j).  7. 

'Dii;.  lib.  6,  tit.  1.  1.  (m;  Pothier  Pand.  lib.  6,  tit.  1,  n.  43;  Pothier  De  la 
Propriety,  n.  343. 


320  BRIGHT  V.  BOYD.  [BOOK    IT. 

Master,  and  do  not  positively  require  to  be  decided,  until  all  the 
equities  between  the  parties  are  brought  by  his  report  fully  before 
the  court.  At  present  it  is  ordered  to  be  referred  to  the  Master  to 
take  an  account  of  the  enhanced  value  of  the  premises  by  the  meliora- 
tions and  improvements  of  the  plaintiff,  and  those  under  whom  he 
claims,  after  deducting  all  the  rents  and  profits  received  by  the  plaintiff 
and  those  under  whom  he  claims ;  and  all  other  matters  will  be  reserved 
for  the  consideration  of  the  court  upon  the  coming  in  of  his  report. 


In  a  later  stage  of  the  above  case  (2  Story,  605,  607),  Mr.  Justice 
Story,  in  confirming  the  Master's  report,  said: 

I  have  reflected  a  good  deal  upon  the  present  subject;  and  the 
views  expressed  by  me  at  the  former  hearing  of  this  case,  reported 
in  1  Story,  478,  et  seq.,  remain  unchanged;  or  rather,  to  express 
myself  more  accurately,  have  been  thereby  strengthened  and  con- 
firmed. My  judgment  is  that  the  plaintiff  is  entitled  to  the  full 
value  of  all  the  improvements  and  meliorations  which  he  has  made 
upon  the  estate,  to  the  extent  of  the  additional  value  which  they  have 
conferred  upon  the  land.  It  appears  by  the  Master's  report  that  the 
present  value  of  the  land  with  the  improvements  and  meliorations 
is  $1,000 ;  and  that  the  present  value  of  the  land  without  these  im- 
provements and  meliorations  is  but  $25 ;  so  that  in  fact  the  value 
of  the  land  is  increased  thereby  $975.  This  latter  sum,  in  my  judg- 
ment, the  plaintiff  is  entitled  to,  as  a  lien  and  charge  on  the  land 
in  its  present  condition.  I  wish,  in  coming  to  this  conclusion,  to  be 
distinctly  understood  as  affirming  and  maintaining  the  broad  doctrine, 
as  a  doctrine  of  equity,  that,  so  far  as  an  innocent  purchaser  for  a 
valuable  consideration,  without  notice  of  any  infirmity  in  his  title, 
has,  by  his  improvements  and  meliorations,  added  to  the  permanent 
value  of  the  estate,  he  is  entitled  to  a  full  remuneration,  and  that 
such  increase  of  value  is  a  lien  and  charge  on  the  estate,  which  the 
absolute  owner  is  bound  to  discharge  before  he  is  to  be  restored  to 
his  original  rights  in  the  land.  This  is  the  clear  result  of  the 
Eoman  law;  and  it  has  the  most  persuasive  equity,  and,  I  may  add, 
common  sense  and  common  justice,  for  its  foundation.  The  Better- 
ment Acts  (as  they  are  commonly  called)  of  the  States  of  Massa- 
chusetts and  Maine,  and  of  some  other  States,  are  founded  upon  the 
like  equity,  and  were  manifestly  intended  to  support  it,  even  in  suits 
at  law  for  the  recovery  of  the  estate. 

The  report  will,  therefore,  be  accepted  and  allowed;  and  a  decree 
made  in  conformity  to  the  present  opinion.^ 

^Accord:  Whitledge  v.  Wait  (1804)  Rnccd  (Ky.)  335;  2  Am.  Dee.  721  and 
note;  Barlow  v.  Bell  (1818)  1  Marsh.  24G,  ante;  Bell's  Heirs  v.  Barnet  (1829) 
2  J.  J.  Marsh.  516;  Dufoiir  v.  Camfranc  (1822)  11  Mart.  (i05 ;  Thomas  v. 
Thomas    (1855)    10  B.  Mon.  420;  Albea  v.  Griffin    (1838)   2  Dev.  &  B.  Eq.  9; 


CHAP.    I.]  PARSONS    V.    MOSES.  321 

In  Parsons  v.  Moses  (18(^4),  IG  Iowa,  440,  444,  Dillon,  J.,  said: 

It  will  aid  us  to  understand  the  meaning  and  purpose  of  the  several 

statutory  provisions  [of  the  Betterment  Acts]  above  referred  to,  by 

recurring  briefly  to  the  rights  of  the  parties  at  common  law,  or  in  the 

absence  of  the  statute. 

By  ^the  English  and  American  common  law,  the  true  owner  re- 
covers his  land  in  ejectment,  without  liabTIitylo^ay  forTmprovemjnts, 
which  may  have  been  madu  upon  it  by  an  occupant  without  title.  Im- 
provements annexed  to  the  freehold,  the  laws  deems  part  of  it,  and 
they  pass  with  the  recovery.     Every  occupant  makes  improvements 

Blodgett  V.  Hitt  (1871)  29  Wis.  1G9;  Union  Hall  v.  Morrison  (1873)  39  Md. 
281;  Valle  v.  Fleming  (1859)  29  Mo.  152  (semble)  ;  Hatcher  v.  Briggs  (1876) 
6  Ore.  31;  Preston  v.  Brown  (1878)  35  Oh.  St.  18;  Davis  v.  Gaines  (1881) 
104  U.  S.  386,  403-405;  Munsie  v.  Lindsay  (1883)  10  Pr.  R.  (Ont.)  173; 
Hudgin  V.  Hudgin  (1849)  6  Gratt.  320;  Sands  v.  Lynhani  (1876)  27  Gratt. 
291,  304;  Effinger  v.  Hall  (1885)  81  Va.  94,  104  (semble)  ;  Thomas  et  al.  v. 
Evans  (1887)    105  N.  Y.  601,  611  et  seq. 

In  States  of  Spanish- American  origin,  the  rule  of  the  civil  law  obtains  as 
explained,  by  Story,  J.,  in  tlie  principal  case.  For  example,  in  Howard  v. 
North  (1849)  5  Tex.  290,  316,  it  is  said:  "This  principle  of  equity  has  been 
repeatedly  recognized  by  the  courts  of  chancery.  It  was  a  well-established 
rule  under  tlie  Spanish  system  of  jurisprudence,  and  its  justice  should  com- 
mend its  adoption  and  recog-nition  in  all  codes  and  by  all  courts.  In  Dufour 
V.  Camfranc  [1822]  (11  Mart.  R.  610)  the  court,  having  declared  a  sale  by 
the  sheriff  void,  proceed  to  say:  'Another  question  presents  itself.  It  has  been 
proved  that  proceeds  arising  from  the  sale  of  the  slaves  were  applied  to  the 
discharge  of  the  judgment  debts  of  the  plaintiff,  and  the  court  is  of  opinion 
that  he  cannot  recover  in  this  suit  until  he  repay  the  money.  This  is  the 
doctrine  expressly  laid  down  by  Fabrero,  Lib.  3,  cap.  2,  sec.  5,  n.  357,  and  we 
readily  adopt  it;  for  nothing  can  be  more  unjust  than  to  permit  a  debtor  to 
recover  back  his  property  because  the  sale  was  irregular,  and  yet  allow  him  to 
profit  by  that  irregular  sale  to  discharge  his  debts.' 

"Tliis  principle  has  been  frequently  recognized  by  the  decisions  in  Kentucky. 
The  proceedings  in  law  will,  by  courts  of  equity,  be  treated  as  valid,  though 
they  may  be  erroneous.  But  equity  will  relieve  against  their  consequences,  be- 
cause the  rights  thereby  acquired  cannot  be  retained  in  conscience.  The  pur- 
chaser will  be  treated  as  a  trustee  and  he  will  not  be  compelled  to  surrender 
until  equity  is  done  him  (7  Mon.  R.  615:  8  Dan.  R.  183;  3  id.  623)."  See  also 
Gaither  r.  Ilanrick  (1S87)   69  Tex.  92;  Harkey  r.  Cain  (1887)   69  id.  146. 

Contra:    Haggarty  v.  McCanna   (1874)    10  E.  C.  Green,  48. 

On  the  whole  subject,  see  valuable  notes  in  18  Harv.  L.  R.  305,  and  30  Am. 
Dec.  177-182. 

For  the  foreign  law,  see  Biirgerliches  Gesetzbuch,  §§816-817;  French  Code 
Civil,  Dalloz,  arts.  1379-1381;  Italian  Civil  Code  (French  translation  by  Prud- 
homme),  arts.  1148-1150;  Spanish  Civil  Code  (Falcon),  1897-1808;  Bk.  ii, 
tit.  V.  on  possession.  The  editions  of  tlie  Italian  and  Spanish  codes  are  elabo- 
rately annotated  with  references  to  European  and  Spanish-American  States. 
—Ed. 


322  PARSONS    V.    MOSES.  [BOOK    II. 

at  his  peril,  even  if  he  acts  under  a  bona  fide  belief  of  ownership. 
2  Kent.  Com.  334.  Such  is  the  rigid  rule  of  the  common  law.  It  is 
founded  upon  the  idea  that  the  owner  should  not  pay  an  intruder,  or 
disseisor,  or  occupant,  for  improvements  which  he  never  authorized. 
It  is  supposed  to  be  founded  in  good  policy,  inasmuch  as  it  induces 
diligence  in  the  examination  of  titles,  and  prevents  intrusion  upon 
and  appropriations  of  the  property  of  others. 

Chancery,  borrowing  from  the  civil  law,  made  the  first  innovation 
upon  the  common  law  doctrine.  And  it  came  at  length  to  be  held  in 
equity,  that  when  a  bona  fide  possessor  of  property  (for  equity,  no 
more  than  law,  would  aid  a  mala  fide  possessor)  made  meliorations 
and  improvements  upon  it  in  good  faith,  and  under  an  honest  belief 
of  ownership,  and  the  real  owner  was  for  any  reason  compelled  to  come 
into  a  court  of  equity,  that  court  applying  the  familiar  maxim,  that 
he  who  seeks  equity  must  do  equity,  and  adopting  the  civil  law  rule 
of  natural  equity,  would  compel  him  to  pay  for  those  improvements 
or  industrial  accessions,  not  the  cost  indeed,  but  so  far  as  they  were 
permanently  beneficial  to  the  estate,  and  enhanced  its  value.  Story, 
Eq.  Jurisp.,  779a,  799& ;  Putnam  v.  Ritchie,  6  Paige,  390 ;  Bright  v. 
Boyd,  1  Story  Rep.  478,  enriched  by  the  learning  and  research  of 
that  distinguished  jurist ;  S.  C.  2  Id.  605 ;  Green  v.  Biddle,  8  Wheat. 
77;  Willard's  Eq.  312;  Sugd.  on  Vend.  chap.  22,  §§  54,  55,  57. 

This  was  the  extent  of  relief  to  bona  fide  possessors.  "I  have  not,"^ 
says  Chancellor  Walworth,  in  Putnam  v.  Ritchie,  6  Paige,  390,  "been 
able  to  find  any  case  either  in  this  country  or  in  England  wherein 
the  Court  of  Chancery  has  assumed  to  give  relief  to  a  complainant 
who  has  made  improvements  upon  land,  the  legal  title  to  which  was 
in  the  defendant,  where  there  has  been  neither  fraud  nor  acquiescence 
on  the  part  of  the  latter  after  he  had  knowledge  of  his  legal  rights." 

Courts  of  law  next  modified  the  strict  rule  of  the  common  law 
(which  makes  the  occupant  of  land  which  is  owned  by  another,  no 
matter  how  good  the  faith  of  the  occupant  may  be,  liable  for  the  rents 
and  profits)  to  this  extent,  viz.,  that  where  such  owner  brought  his 
action  for  mesne  profits,  which  courts  of  law  treated  as  an  equitable 
action,  the  bona  fide  occupant  might  set  off  or  recoup  the  value  of 
liis  permanent  improvements  to  the  extent  of  the  rents  and  profits  de- 
manded, but  no  further.  Jackson  v.  Loomis,  4  Cow.  168;  Murray  v. 
Governeur,  2  Johns.  Cas.  438;  Green  v.  Biddle,  8  Wheat.  1,  75,  76; 
2  Kent,  335,  and  cases  in  note ;  Putnam  v.  Ritchie,  6  Paige,  404 ; 
Hilton  V.  Brown,  2  Wash.  C.  C.  R.  165;  Davis  v.  Smith,  5  Geo.  274. 

The  equity  of  the  bona  fide  possessor  who  had  made  lasting  and 
permanent  improvements  upon  lands  which  turned  out  to  be  another's,. 
was  so  strong  and  persuasive  as  to  force  its  recognition  to  this  partial 
extent  by  courts  of  law,  without  the  aid  of  statute.* 

'It  may  therefore  be  stated  generally  and  broadly  that  the  hona  fide  possessor 


CHAP,    l.j  GRISWOLU   V.    UlUGG   ET    UX.  333 

GRISWOLD  V.  BRAGG  ET  UX. 

Circuit  Court  of  the  United  States,  1880. 

[48  Federal  Reporter,  519.  J 

In  Equity.  Bill  supplementary  to  an  action  in  ejectment,  for  the 
purpose  of  ascertaining  the  value  of  betterments  and  improvements. 
On  demurrer  to  bill. 

Shipman,  J.  At  the  September  term,  1879,  of  this  court,  the  jury 
rendered  a  verdict,  in  an  action  of  ejectment,  in  favor  of  the  present 
defendants  against  the  present  plaintiff,  that  they  recover  the  seisin 
and  possession  of  an  undivided  fourth  part  of  a  tract  of  land  in  the 
town  of  Chester.  Upon  motion  of  the  defendant  in  the  ejectment  suit, 
judgment  and  execution  were  stayed  until  further  order.  He  there- 
upon filed  a  supplemental  bill  on  the  equity  side  of  the  court.  This 
bill,  after  setting  out  the  state  statute  hereinafter  recited,  commonly 
called  the  "Betterment  Act,"  alleges,  in  substance,  that  the  plaintiff 
and  those  under  whom  he  claims  have  held  said  land  by  a  series  of 
connected  conveyances  since  1846,  which  deeds  purported  to  con- 
vey, and  were  intended  and  believed  to  convey,  an  absolute  estate  in 
fee-simple,  and  that  the  plaintiff  and  his  grantors  have  had  uninter- 
rupted possession  of  said  land  since  1846,  under  a  like  belief  that  they 

winj)e  allowed,  for  taxes^,„assessnients_and  improvements  made  in  the  honest 
belief  of  o\vneishijv_whether  he  derive  title  through  the  administrator  or_  ex- 
ecutor, as  in  Bright  v.  Boyd,  supra,  or  where  the  administrator  has,  without 
fraud,  taken  title  in  himself.  Smith  v.  Drake  (1873)  23  N.  J.  Eq.  302;  Lagger 
V.  Mutual  Union  Loan  Assn.  (1893)  146  111.  283  (and  cases  cited),  Henderson 
V.  Ashwood  [1894]  L.  R.  App.  Cas.  150,  103.  Or  through  imperfect  foreclosure 
of  a  mortgage  provided  the  improvements  are  reasonable  and  judicious.  "Gillis 
V.  Martin  (1833),  2  Dev.  Eq.  (N.  C),  470;  McConnel  v.  Holabush  (1849), 
11  111.61;  McSorley  v.  Larissa  ( 1868) ,  100  Mass.  270;  Harper's  Appeal  (1870) 
64  Pa.  St.  315;  Am.  Buttonhole  Co.  v.  Burlington  Loan  Assn.  (1886),  68  la. 
326.  But  see  Miller  v.  Curry  (1889),  124  Tnd.  48,  in  which  the  doctrine  is 
curiously  limited,  and  compare  Barnett  v.  Nelson  (1880),  54  la.  41"  (Kirch- 
wey's  Cases  on  Mortgage,  535,  note),  or  in  other  than  mortgage  foreclosure. 
Jackson  v.  Loomis  (1825),  4  Cow.  168;  S.  C.  15  Am.  Dec.  347,  with  elaborate 
note  349-354;  Wells  v.  Davis  (1890),  77  Tex.  636;  Duckett  v.  Duckett  (1891), 
21  Atl.  323  (Md.)  ;  Long  v.  Cude  (1889).  75  Tex.  225;  Booth  v.  Best  (1890), 
75  Tex.  568;  Phillips  v.  Coast  (1889),  130  Pa.  St.  572;  Goodnow  v.  Moulton 
(1879)  51  la.  555.  Compare,  however,  Homestead  Co.  v.  Valley  Railroad 
(1872)   17  Wall.  153,  166. 

As  to  the  male  fide  possessor,  see  Green  r.  Moore  (1892)  44  La.  Ann.  855, 
allowing  such  possessor  reimbursement  of  necessary  expenses  for  the  preserva- 
tion of  the  property  and  an  adjustment  of  his  claims  for  construction  and  im- 
provements. But  compare  Stille  v.  Shule  (1889)  41  La.  Ann.  816.  And  see 
Lane  v.  Taylor  (1872)  40  Ind.  495.— Ed. 


324  GRISWOLD    V.    BRAGG   ET    UX.  [BOOK    II. 

had  an  absolute  estate;  and  that  during  this  time,  and  before  the 
commencement  of  the  ejectment  suit,  imj»oyements_of  the  value  of 
$15^000have  been  made  on  said  land,  by  said  reputed  owners,  in  good 
f aitli7~and~lir~the'"1'il;e~l3ei:iet;^  anci  prays  that  the  present  value^f 
said  improvements,  and  the  excess  of  the  value  thereot  over  t^e 
aniDtnit — drte— 40 — the — defendants  for  the  jise  and^  occupation,  of 
said  premises,  may  be  ascertained,  to__tli£^end  that  tlie^^uitable 
Telief  provided  hy  said  statute  may  be  granted.  To  this  bill 
the  defendants  have  demurred.  Their  title  became^  vested  in  them 
in  1878. 

The  statute  (Revision  1875,  p.  363,  §  17)  provides  as  follows: 

"Final  judgment  shall  not  be  rendered  against  any  defendant,  in  an 
action  of  ejectment,  who  or  whose  grantors  or  ancestors  have,  in  good 
faith,  believing  that  he  or  they,  as  the  case  may  be,  had  an  absolute 
title  to  the  land  in  question,  made  improvements  thereon,  before  the 
commencement  of  the  action,  until  the  court  shall  have  ascertained 
the  present  value  thereof,  and  the  amount  reasonably  due  to  the 
plaintiff  from  the  defendant  for  the  use  and  occupation  of  the  prem- 
ises; and,  if  such  value  of  such  improvements  exceeds  such  amount 
due  for  use  and  occupation,  final  judgment  shall  not  be  rendered  until 
the  plaintiff  has  paid  said  balance  to  the  defendant;  but,  if  the 
plaintiff  shall  elect  to  have  the  title  confirmed  in  the  defendant,  and 
shall,  upon  the  rendition  of  the  verdict,  file  notice  of  such  election 
with  the  clerk  of  the  court,  the  court  shall  ascertain  what  sum  ought, 
in -equity,  to  be  paid  to  the  plaintiff  by  the  defendant,  or  other  parties 
in  interest;  and,  on  payment  thereof,  may  confirm  the  title  to  said 
land  in  the  parties  paying  it." 

The  original  statute  was  passed  June  26,  1848  (Laws  Conn.  1848, 
p.  48).  It  plainly  appears  from  the  act  as  passed,  and  as  reproduced 
in  the  Eevisions  of  1849  (section  233)  and  1866  (section  281),  that 
the  proceeding  in  the  state  court,  upon  the  motion  of  the  defendant, 
after  the  verdict,  is  a  proceeding  in  equity. 

The  question  of  law  which  is  raised  by  the  demurrer  is  in  regard 
to  the  validity  of  this  statute.  It  is  not  denied  that  the  statutes  of 
the  several  states  in  regard  to  realty,  except  when  the  constitution, 
treaties,  or  statutes  of  the  United  States  otherwise  require  or  pro- 
vide, which  are  in  conformity  with  the  constitutions  of  the  respective 
states,  are  rules  of  property,  and  rules  of  decision  in  the  courts  of  the 
United  States  (Bank  v.  Dudley's  Lessee,  2  Pet.  492),  and  that,  if  a 
state  legislature  has  created  a  right  and  established  a  remedy  in 
chancery  to  enforce  such  right,  such  remedy  may  he  pursued  in  the 
federal  courts,  if  it  is  not  inconsistent  with  their  constitution  (Clark  v. 
Smith,  13  Pet.  195;  Ex  parte  Biddle,  2  Mason,  472),  and  that  an 
inability  of  the  federal  courts  to  proceed  in  the  exact  mode  provided 
by  a  state  statute  need  not  prevent  a  party  from  the  benefit  of  the 
relief  which  is  intended  to  be  granted,  if  the  modes  of  proceeding 


CHAP.    I.]  GKISWOLD    ('.    BRAGG    ET   UX.  325 

in  courts  of  chancery  are  adapted  to  carry  into  effect  the  statute.  Bank 
V.  Dudley's  Lessee,  cited  supra.  This  is  true,  although  the  right 
which  has  been  established  by  the  local  statute  is  a  new  right,  and 
one  previously  unknown  to  a  court  of  chancery  in  this  country  or  in 
England.  Lorman  v.  Clarke,  3  McLean,  5G8;  Bayerque  v.  Cohen, 
1  McAll.  113.  The  practice  in  equity  is,  in  general,  except  where 
otherwise  directed  by  statute  or  by  the  rules  of  the  supreme  court, 
regulated  by  the  English  chancery  practice  as  it  existed  in  1842,  ])efore 
the  adoption  of  the  "new  rules."  Equity  Rule  90 ;  Badger  v.  Badger, 
1  Cliff.  237;  Goodyear  v.  Rubber  Co.,  2  Cliff.  351. 

The  statute  practically  impresses  upon  the  land  of  a  successful  plain- 
tiff in  ejectment  a  lion  for  the  excess,  above  the  amount  due  for  use 
and  occupation,  of  the  present  value  of  the  improvements  which  have 
been  placed  on  the  land,  before  the  commencement  of  the  action,  by 
a  defendant  or  his  ancestors  or  grantors,  in  good  faith,  and  in  the 
belief  that  he  or  they  had  an  absolute  title  to  the  land  in  question, 
and  forbids  occupancy  by  the  plaintiff  until  the  lien  is  paid.  There 
is  a  natural  equity  which  rebels  at  the  idea  that  a  bona  fide  occupant 
and  reputed  owner  of  land  in  a  newly-settled  country,  where  unim- 
proved land  is  of  small  value,  or  where  skill  in  conveyancing  has 
not  been  attained,  or  where  surveys  have  been  uncertain  or  inaccu- 
rate, should  lose  the  benefit  of  the  labor  and  money  which  he  had 
expended  in  the  erroneous  belief  that  his  title  was  absolute  and  perfect. 
"While  it  is  true  that  improvements  and  permanent  buildings  upon  land 
belong  to  the  owner,  yet,  in  a  comparatively  newly-organized  state, 
where  titles  are  necessarily  more  uncertain  than  they  are  in  England, 
there  is  an  instinctive  conviction  that  justice  requires  that  the 
possessor  under  a  defective  title  should  have  recompense  for  the 
improvements  which  have  been  made  in  good  faith  upon  the  land 
of  another.  The  maxim,  often  repeated  in  the  decisions  upon  this 
subject,  nemo  debet  locupletari  ex  alterius  incommodo,  tersely  ex- 
presses the  antagonism  against  the  enrichment  of  one  out  of  the 
honest  mistake,  and  to  the  ruin,  of  another.  It  is  obvious  that  this 
statutory  equity  is  not  without  occasional  hardships.  The  true  owner 
may  be  forced  to  sell  his  land  against  his  will,  and  may  sometimes 
be  placed  too  much  in  the  power  of  capital,  but  a  carefully  regu- 
lated and  guarded  statute  should  ordinarily  be  the  means  of  doing 
exact  justice  to  the  owner. 

It  is  well  known  that  the  English  law  made  no  provision  for 
reimbursement  of  expenditures  of  this  kind,  as  against  the  owner  of 
the  legal  title,  except  by  allowing  the  bona  fide  occupant  to  recoup 
the  value  of  his  improvements,  when  he  is  a  defendant  in  a  bill  in 
equity  praying  for  an  account  of  rents  and  profits.  The  established 
theory  was  that  a  court  of  equity  should  not  go  any  further,  and 
"grant  active  relief  in  favor  of  such  a  bona  fide  possessor  making 
permanent    meliorations    and    improvements,    by    sustaining    a    bill. 


326  GRISWOLD   V.   BRAGG  ET   UX.  [bOOK   II. 

brought  by  him  therefor,  against  the  true  owner,  after  he  has  recov- 
ered the  premises  at  law."  Bright  v.  Boyd,  1  Story,  478,  495.  Such 
was  the  opinion  of  Chancellor  Walworth  in  Putnam  v.  Ritchie, 
G  Paige,  390,  and  such  may  be  taken  to  be  the  state  of  law  in  this 
country,  in  1841,  apart  from  local  statutes,  and  of  the  English  law 
then  and  now.  In  1841  Judge  Story  decided,  in  Bright  v.  Boyd,  in 
favor  of  the  power  of  courts  of  equity  to  grant  affirmative  relief, 
at  the  suit  of  a  bona  fide  possessor,  against  the  true  owner;  and 
in  1843  restated  his  opinion,  after  an  additional  hearing  of  the 
same  case.  2  Story,  605.  The  learned  judge  thus  states  his  view 
of  the  law : 

"I  wish,  in  coming  to  this  conclusion,  to  be  distinctly  understood 
as  affirming  and  maintaining  the  broad  doctrine,  as  a  doctrine  of 
equity,  that,  so  far  as  an  innocent  purchaser  for  a  valuable  considera- 
tion, without  notice  of  any  infirmity  in  his  title,  has,  by  his  improve- 
ments and  meliorations,  added  to  the  permanent  value  of  the  estate, 
he  is  entitled  to  a  full  remuneration ;  and  that  such  increase  of  value 
is  a  lien  and  charge  on  the  estate,  which  the  absolute  owner  is  bound 
to  discharge,  before  he  is  to  be  restored  to  his  original  rights  in  the 
land.  This  is  the  clear  result  of  the  Roman  law ;  and  it  has  the  most 
persuasive  equity,  and,  I  may  add,  common  sense  and  common  justice, 
for  its  foundation." 

This  opinion  of  Judge  Story,  though  often  favorably  quoted, 
cannot  be  considered  as  the  established  law  of  this  country,  apart  from 
the  statute,  because  it  has  rarely  had  occasion  to  be  reviewed,  inasmuch 
as  the  "Betterment  Acts"  have  become  the  predominant  statutory 
system  of  the  country.  The  supreme  courts  of  Missouri,  Maryland 
and  Oregon — states  which  apparently  have  no  statute  on  the  sub- 
ject— have  adopted  his  views.  Valle's  Heirs  v.  Fleming's  Heirs 
(1859),  29  Mo.  152;  Union  Hall  Ass'n  v.  Morrison  (1873),  39  Md. 
281 ;  Hatcher  v.  Briggs  (1876),  6  Or.  31. 

The  theory  of  the  Connecticut  statute  is  that  of  Judge  Story,  that 
an  equitable  lien  is  placed  upon  the  land  for  the  value  of  the  improve- 
ments which  the  bona  fide  occupant  has  innocently  made.  Further- 
more, the  legal  owner  has  his  election  either  to  take  possession  of  the 
land  by  paying  the  lien,  or  to  receive,  in  lieu  of  the  land,  the  sum 
which  the  court  shall  ascertain  to  be  equitably  due  him.  The 
owner's  title  is  not  forced  away  from  him,  but  the  equitable  lien  of 
the  occupant  is  preserved.  There  is  no  election  on  the  part  of  the 
occupant  to  keep  the  land,  and  thus  compel  the  owner  to  abandon  his 
title.  Xeither  is  any  judgment  rendered  against  the  owner  for  the 
value  of  the  improvements,  to  be  enforced  by  levy  of  execution.  These 
two  provisions  in  the  statutes  of  Ohio  and  Iowa,  respectively,  were 
held  to  be  unconstitutional  upon  the  ground  that  they  invaded  the 
rights  of  private  property  as  secured  by  the  constitutions  of  the 
respective  states.    McCoy  v.  Grandy,  3  Ohio  St.  463  ;  Childs  v.  Shower, 


€I1A1'.    I.]  GRISWOLD   V.    BRAGG    ET    UX.  337 

18  Iowa,  2G1.  It  may  be  remarked  that  the  original  statute  of  1848 
provided  that  "the  court  shall  order  and  decree  the  l)alance  so  found 
due  to  be  paid."  This  clause  is  not  found  in  the  present  statute,  and 
the  amount  of  the  lien  cannot,  apparently,  be  collected  by  levy  upon 
the  defendant's  property. 

The  statute  is  said  to  be  unconstitutional,  in  that  it  impairs  the 
I'tfect  oL'  conveyances,  in  violation  of  the  provision  of  the  constitution 
of  the  United  States  (article  1,  §  10),  which  prohibits  a  state  from 
passing  a  law  impairing  the  obligation  of  contracts;  and  that,  as 
regards  ])re-e.\isting  conveyances  or  estates,  it  is  contrary  to  the  state 
constitution,  because  it  deprives  a  person  of  his  property  without  due 
course  of  law,  and  deprives  him  of  his  right  of  trial  by  jury.  I  do 
not  think  that  it  is  necessary  to  enter  into  a  critical  examination  of 
these  constitutional  provisions.  The  defendants'  suggestions  are 
founded  upon  a  harsh  view  of  the  nature  of  the  statute.  It  does  not 
impair  the  obligation  of  any  contract  between  the  owner  and  his 
grantor,  or  between  the  state  and  the  owner.  It  interferes  with  no 
legal  title.  It  interferes  with,  and  is  an  abridgment  of,  the  right  to 
the  immediate  possession  and  beneficial  enjoyment  of  property,  as 
that  right  existed  at  common  law,  and,  to  that  extent,  impairs  the 
interest  which  owners  formerly  had  in  lands.  It  cannot  be  said  to  be 
an  unjust  or  unreasonable  limitation  of  the  common-law  right 
of  possession,  but,  on  the  contrary,  the  provisions  are  reasonable. 
Society  v.  Wheeler,  2  Gall.  105;  Jackson  v.  Lamphire,  3  Pet. 
280;  Curtis  v.  Whitney,  13  Wall.  68;  Welch  v.  Wadsworth,  30 
Conn.  149. 

Discussion  upon  the  constitutionality  of  this  statute  has  not,  apjiar- 
cntly,  arisen  in  the  courts  of  this  state.  An  examination  of  decisions 
elsewhere  upon  statutes  of  this  class  shows  that  Green  v.  Biddle, 
8  Wheat.  1,  decided  that  the  betterment  act  of  Kentucky  was  uncon- 
stitutional, because  it  was  a  violation  of  the  compact  between  Virginia 
and  Kentucky.  It  may  fairly  be  inferred,  from  the  express  views  of 
the  court,  as  given  by  Judges  Story  and  Washington,  that  it  disliked 
the  statute  irrespective  of  the  contract,  and  was  not  satisfied  with  its 
provisions.  These  dictn  may  properly  be  read  in  the  light  of  the 
decision  in  Bank  v.  Dudley's  Lessee,  2  Pet.  492,  in  wliich  case  no 
opinion  was  expressed  upon  the  general  principles  of  the  betterment 
act  of  Ohio.  Th6  constitutionality,  with  relation  to  tlie  constitutions 
of  the  respective  states  whose  courts  gave  the  decisions,  or  the  justice 
of  statutes  similar  in  substance  or  in  principle  to  the  Connecticut 
statute,  has  been  learnedly  discussed  and  sustained  in  the  follow- 
ing, among  other,  cases :  Withington  r.  Corey,  2  X.  H.  115  ;  Whitney  v. 
Eichardson,  31  Vt.  300;  Armstrong  v.  Jackson,  1  Blackf.  374;  McCoy 
V.  Grandy,  3  Ohio  St.  463;  Ross  r.  Irving,  14  111.  171;  Childs  r. 
Shower,  18  Iowa,  2(51 .  The  constitutionality  of  the  Tennessee  statute 
was  condemned  in  Nelson  v.  Allen.  1  Yerg.  STO.    Judge  Catron  says 


328  WILLIAMS    V.    GIBBES   AND   ANOTHER.  [BOOK   II. 

that  the  question  of  constitutionality  did  not  properly  arise  in  that 
case,  and  expresses  no  opinion  upon  the  point.  The  demurrer  is 
overruled.^ 


JOHN  S.  WILLIAMS,  ADMINISTRATOR,  ETC.,  APPELLANT 
V.  ROBERT  M.  GIBBES  AND  ANOTHER,  EXECUTORS, 
ETC.  ROBERT  M.  GIBBES  AND  ANOTHER,  EXECU- 
TORS, ETC.,  APPELLANTS  v.  JOHN  S.  WILLIAMS,  AD- 
MINISTRATOR, ETC. 

SuPEEME  Court  of  the  United  States^  1857. 

[20  Howard,  535.] 

These  were  cross  appeals  from  the  Circuit  Court  of  the  United 
States  for  the  district  of  Maryland.  In  the  report,  the  first  case  only 
will  be  mentioned  ;  namely,  that  of  Williams  against  Oliver's  executors. 

The  case  was  formerly  before  the  court,  and  is  reported  in  17  How. 
239. 

The  facts  are  stated  in  the  opinion  of  the  court. 

The  decree  was  for  $9,686.33  in  money,  and  $19,215.95  in  stock, 
instead  of  $22,866.94  in  money,  and  $32,847.77  in  stock,  as  claimed 
by  the  appellant. 

Mr.  Justice  Nelson  delivered  the  opinion  of  the  court. 

This  is  an  appeal  from  a  decree  of  the  Circuit  Court  of  the  United 
States  for  the  district  of  Maryland. 

A  bill  was  filed  in  the  court  below  by  Williams,  the  present  appel- 
lant, to  recover  of  the  defendants  the  proceeds  of  the  share  of  com- 
plainant's intestate  in  what  is  known  as  the  Baltimore  Company,  which 
had  a  claim  against  the  Mexican  government,  that  was  awarded  to  it 
under  the  treaty  of  1839.  The  proceeds  of  the  share  amounted 
to  the  sum  of  $41,306.41.  The  history  of  the  litigation  to  which  the 
award  under  the  treaty  gave  rise,  in  the  distribution  of  the  fund 
among  the  claimants  or  the  assignees  composing  the  Baltimore  Com- 
pany, will  be  found  in  the  report  of  four  of  the  cases  which  have 
heretofore  come  before  this  court,  11  How.  529 ;  12  How.  Ill ;  14  How. 

*In  addition  to  the  authorities  cited  in  principal  case,  see  Cooley's  Con- 
stitutional Limitations  (7th  ed.),  550-553,  and  numerous  cases  cited  in  the 
note. 

See  also.  Doe  v.  Roe  (1887)  31  Fed.  07,  in  which  a  plea  to  an  action  of 
ejectment,  allej^inj;,  inicr  alia,  valuable  iirprovonionts  and  prayinp;  that  de- 
fondant  be  allowed  a  sum  amountinf;  to  tlic  enhanced  value  of  the  land  by 
reason  of  the  improvements,  was  not  allowed  although  especially  authorized  by 
the  state  practice. — Ed. 


CHAP.    I.]  WILLIAMS    V.    GIBBES    AND    ANOTHER.  329 

610;  17  How.  233,  239.  That  of  Williams  v.  Gibbes,  in  17  How.,  con- 
tains the  report  of  the  present  case  when  formerly  here.  This  court 
then  decided  that  the  claim  of  the  executors  of  Oliver  to  the  share  of 
Williams  was  not  well  founded ;  that  the  interest  of  Williams  in  the 
same  had  not  been  legally  divested  during  his  lifetime;  and  that  his 
legal  representative  then  before  the  court  was  entitled  to  the  pro- 
ceeds. The  decree  of  the  court  below  was  reversed,  and  the  cause 
remanded  for  further  proceedings,  in  conformity  with  the  opinion  of 
the  court.  Upon  the  cause  coming  down  before  that  court  on  the 
mandate,  the  defendants,  the  executors  of  Oliver,  set  up  several 
charges  against  the  fund,  which  it  was  claimed  should  be  received  and 
allowed  in  abatement  of  the  amount. 

1.  For  certain  costs  iind_expenses  tojv^iich  they  had  been  subjected 
in  resisting^^uits  instituted  against  it  by  third  parties^  The  history 
of  these  suits  will  be  found  in  the  cases  already  referred  to  in  this 
court,  and  need  not  be  stated  at  large. 

2.  For,  s&rvicps  and  jexpenses  of   Oliver  in  his  lifetime,  in  the- 
prosecution  of  the  claim  of  the  Baltimore  Company^  as  its  attorney 
andamgent  before  the  government  of  Mexico,  from  the  year  1825  down 
to  the  time  of  his  death  in  1834. 

The  court  below  allowed  to  the  executors  the  costs  and  expenses  to 
which  they  had  been  subjected  in  defending  the  suits  mentioned,  and 
also  thirty-five  per  cent,  of  the  fund  in  question  for  the  services  of 
Oliver. 

The  case  is  one  in  many  of  its  features  novel  and  peculiar. 

James  Williams,  the  intestate',  and  owner  of  the  share  in  the  Balti- 
more Company,  became  insolvent  in  1819,  and  took  the  benefit  of  the 
insolvent  laws  of  Maryland;  and  in  1825  the  insolvent  trustee  of  his 
estate  sold  and  assigned  to  Robert  Oliver  the  share  in  question  in 
this  company;  and  from  thence  down  to  the  year  1849,  Oliver  in  his 
lifetime,  and  his  executors  afterwards,  did  not  doubt  but  that  a  per- 
fect title  to  the  share  had  passed  by  virtue  of  this  assignment.  In  that 
year  the  Court  of  Appeals  of  Maryland  decided,  in  a  case  between  the 
executors  and  an  insolvent  trustee  of  Williams,  that  no  title  passed  to 
Oliver  by  this  assignment ;  and  as  a  legal  consequence  it  was  held 
by  this  court,  in  17  How.,  that  the  interest  remained  in  Williams  at 
his  death,  and  of  course  passed  to  his  legal  representative,  the  com- 
plainant. 

All  tlie  services  and  expenses,  therefore,  of  Oliver,  in  his  lifetime, 
in  the  prosecution  of  the  claims  of  the  Baltimore  Company  against  the 
government  of  ^Icxico,  and  of  the  litigation  since  encountered  by  his 
executors  in  res])ect  to  the  share,  have  resulted  in  securing  the  pro- 
ceeds of  the  same  to  the  estate  of  Williams,  the  original  shareholder. 
Williams  in  his  lifetime,  and  his  legal  representatives  since,  down  till 
the  fund  was  in  court  awaiting  distribution,  had  taken  no  steps  for 
its  recovery,  nor  had  they  been  subjected  to  any  expense.    The  whole 


330  WILLIAMS    r.    GIBBES    AND    AXOTHER.  [bOOK    II. 

of  the  services  had  been  rendered,  and  expenses  borne,  by  Oliver  and 
his  executors;  and  the  question  is  whether,  upon  any  established 
principles  of  law  or  equity,  the  court  below  were  right  in  taking  into 
the  account,  in  the  settlement  between  the  parties,  these  services  and 
expenses.    We  are  of  opinion  they  were. 

By  the  judgment  of  the  Court  of  Appeals  of  Maryland,  Oliver  was 
at  no  time  the  true  owner  of  this  share ;  as,  notwithstanding  the 
assignment  by  the  insolvent  trustee,  it  still  remained  in  Williams. 
Oliver  thereby  became  trustee  instead  of  owner  of  the  share  and  of 
the  proceeds,  as  did  also  his  executors;  and  they  must  be  regarded  as 
holding  this  relation  to  the  fund  from  their  first  connection  with  it.  In 
that  character  the  executors  have  been  made  accountable  to  the  estate 
of  Williams,  and  have  been  responsible  since  the  fund  came  into 
their  possession  for  all  proper  care  and  management  of  the  same.  In 
defending  these  proceeds,  therefore,  against  suits  instituted  by  third 
parties  to  recover  them  out  of  the  hands  of  the  executors,  they  have 
done  no  more  nor  less  than  they  were  bound  to  do  as  the  proper 
guardians  of  the  fund,  if  they  had  known  at  the  time  the  relation  in 
which  they  stood  to  it,  and  that  they  were  defending  it  for  the 
benefit  of  the  estate  of  Williams,  and  not  for  that  of  Oliver.  The 
services  rendered  and  expenses  borne  could  not  have  been  dispensed 
with,  consistent  with  their  duties  as  trustees. 

But  it  is  said  that  these  suits  were  defended  by  the  executors  while 
claiming  the  fund  in  right  of  their  testator,  and  hence  for  the 
supposed  benefit  of  his  estate;  that  the  defence  was  not  made 
in  their  character  of  trustees,  and  cannot,  therefore,  be  regarded 
as  a  ground  for  charging  the  estate  of  Williams  with  the  costs  of  the 
litigation. 

The  answer  to  this  view  is,  that  although  in  point  of  fact  the  de- 
fence was  made  under  the  supposition  that  the  fund  belonged  to  the 
estate  of  Oliver,  yet  in  judgment  of  law  it  was  made  by  them  as 
trustees  and  not  owners,  as  subsequently  judicially  ascertained; 
and  as  the  costs  and  expenses  were  properly  incurred  in  the  protection 
and  preservation  of  the  fund,  it  is  but  just  and  equitable  they  should 
be  made  a  charge  upon  it. 

The  misapprehension  as  to  the  right  cannot  change  the  beneficial 
character  of  the  expense,  when  indispensable  to  its  security. 

The  duty  of  a  trustee,  whether  of  real  or  personal  estate,  to  defend 
the  title,  at  law  or  in  equity,  in  case  a  suit  is  brought  against  it,  is 
unquestioned ;  and  the  expenses  are  properly  chargeable  in  his  ac- 
counts against  the  estate.    2  Story,  Eq.  Jur.  §  1275. 

Another  principle  which  we  think  applicable  to  this  case  is  to  be 
found  in  a  class  of  cases  where  a  bona  fide  purchaser  for  a  valuable 
consideration,  without  notice,  has  enhanced  the  value  of  the  property 
by  permanent  expenditures,  and  has  been  subsequently  evicted  by 
the  true  owner  on  account  of  some  latent  infirmity  in  the  title.    It  is 


CHAP,    I.]  WILLIAMS    r.    UIliBES    AND    AXOTIIEI{.  331 

well  settled,  if  tlie  true  owner  is  obliged  to  come  into  a  court  of  equity 
to  obtain  relief  against  the  purchaser,  the  court  will  first  require 
reasonable  compensation  for  such  expenditures  to  be  made,  upon  the 
principle  that  he  who  seeks  equity  must  first  do  equity.  2  Story,  Eq. 
Jur.  §S  ^9!'-  "yj^^j;  6  Paige,  403,  404;  1  Story,  494,  495. 

A  kindred  })rinciple  is  also  found  in  a  class  of  cases  where  there 
has  been  a  bona  fide  adverse  possession  of  the  property  tacitly  ac- 
quiesced in  by  the  true  owner.  The  practice  of  a  court  of  equity  in 
such  cases  does  not  permit  an  account  of  rents  and  profits  to  be  carried 
back  beyond  the  filing  of  a  bill.  8  Wheat.  78;  27  E.  L.  &  Eq.  212; 
7  Ves.  541  ;  1  Edw.  Ch.  579.  This  principle  is  applicable  where  the 
person  in  possession  is  a  bona  fide  purchaser,  and  there  has  been  some 
degree  of  remissness  or  negligence  or  inattention  on  the  part  of  the 
true  owner  in  the  assertion  of  his  rights. 

Courts  of  equity,  it  would  seem,  do  not  grant  active  relief  in  favor 
of  a  bo?ia  fide  purchaser  making  permanent  meliorations  and  im- 
provements by  sustaining  a  bill  brought  by  him  against  the  true  owner, 
after  he  has  succeeded  in  recovering  the  property  at  law.  6  Paige,  390, 
403,  404,  405 ;  1  Story,  495 ;  8  Wheat.  81,  83.  The  Civil  Law  in  this 
respect  is  more  liberal,  and  provides  a  remedy  in  behalf  of  the  pur- 
chaser, even  beyond  an  abatement  of  the  rents  and  profits  for  such 
expenditures  as  have  enhanced  the  value  of  the  estate  (cases  above), 
and  indeed  generally  applies  the  principle  in  favor  of  any  bona  fide 
possessor  of  property  who  has  in  good  faith  expended  his  money  for 
its  preservation  or  amelioration;  otherwise,  it  is  said,  the  true  owner 
appropriates  unjustly  the  property  of  another  to  himself.  Touillier, 
3  B.  tit.  4,  c.  1,  ss.  19,  20. 

Now  in  the  case  before  us,  Oliver  in  1825  purchased  this  share  in 
the  Baltimore  Company  for  the  consideration  of  $2000,  its  full  value 
at  the  time.  The  purchase  was  made  from  the  insolvent  trustee  of 
Williams,  who  all  parties  concerned  believed  had  the  power  to  sell 
and  transfer  the  title.  Williams,  down  till  his  death  in  1836,  set  up 
no  claim  to  it ;  nor  did  his  representative  after  his  death,  till  August, 
1852,  when  this  bill  was  filed.  Oliver  and  his  executors  had  been  in 
the  undisturbed  possession,  so  far  as  respects  any  claim  under 
the  present  right,  for  the  period  of  twenty-seven  years.  And  al- 
though it  may  be  said  in  excuse  for  any  remissness,  and  by  way  of 
avoiding  the  consequences  of  delay,  that  Williams  and  those  repre- 
senting him  had  no  knowledge  of  the  defect  in  the  title  till  the 
decision  of  the  Court  of  Appeals  of  Maryland,  it  may  be  equally  said, 
on  the  other  hand,  that  Oliver  and  his  executors  were  alike  ignorant 
of  it,  and  had  in  good  faith  expended  tlieir  time  and  monev  in  re- 
covering the  claim  against  the  government  of  ^[exico,  and  afterwards 
in  defending  it  against  a  long  and  expensive  litigation. 

It  is  difficult  to  present  a  stronger  case  for  the  protection  of  a  bona 
fide  purchaser  from  loss,  who  has  expended  time  and  money  in  enhanc- 


332  WILLIAMS    V.    GIBBES    AND    ANOTHER.  [BOOK    II. 

ing  the  value  of  the  subject  of  the  purchase,  or  a  case  in  which  the 
principle  more  justly  applies  that  where  the  true  owner  seeks  the  aid 
of  a  court  of  equity  to  enforce  such  a  title,  the  court  will  administer 
that  aid  only  when  making  compensation  to  the  purchaser.  We  are 
ihcrefore  of  opinion  that  tlie  court  below  was  right  in  allowing  in  the 
account  the  costs  and  fees  paid  to  counsel  by  the  executors  in  the  de- 
fence of  the  suits. 

In  respect  to  the  thirty-five  per  cent  allowed  for  the  prosecution  of 
the  claim  against  the  government  of  Mexico,  it  stands  in  principle 
upon  the  same  footing  as  other  services  and  expenses  incurred  in  pro- 
tecting and  preserving  the  fund  after  possession  was  obtained.  The 
amount  of  compensation  depends  upon  the  proofs  in  the  case  as  to 
the  value  of  the  service,  and  which  must  in  a  good  degree  be  governed 
by  the  usual  and  customary  charges  allowed  for  similar  services  and 
expenses.  As  this  claim  was  prosecuted  with  others  by  Oliver  when 
he  supposed  and  believed  that  he  was  the  owner,  and  that  he  was 
acting  on  his  own  behalf  and  not  as  trustee  for  Williams,  the  rate  of 
compensation  must  rest  upon  all  the  facts  and  circumstances  attend- 
ing the  service;  there  could  have  been  no  agreement  as  to  the  com- 
pensation. And  for  the  same  reason  it  cannot  be  expected  that  an 
account  of  the  services  and  expenses  was  kept,  so  as  to  enable  the 
court  to  arrive  with  exactness  at  the  proper  sum  to  be  allowed,  as 
might  have  been  required  if  Oliver  had  been  chargeable  with  notice 
of  the  trust.  The  proofs  show  that  Oliver  appointed  agents  to  repre- 
sent him  at  the  government  of  Mexico  as  early  as  March,  1825,  and 
that  these  agencies  were  continued  from  thence  down  till  his  death 
in  1834 ;  and  that  during  all  this  time  he  kept  up  an  active  cor- 
respondence with  them  and  others,  and  with  our  ministers  at  Mexico, 
and  with  his  own  government,  on  the  subject.  The  justice  of  these 
claims  had  been  acknowledged  by  the  government  of  Mexico  as  early 
as  1823-24,  but  no  provision  was  made  for  their  payment.  They  were 
regarded  as  of  very  little  value,  from  the  hopelessness  of  their  re- 
covery; and  it  is  perhaps  not  too  much  to  say,  upon  the  evidence, 
that  in  the  absence  of  the  vigorous  and  efficient  prosecution  of  them 
by  Oliver,  they  would  have  been  worthless.  In  the  result,  for  the 
share  in  question,  which  was  sold  in  1825  for  $2000,  there  was 
realized  from  the  government  of  Mexico,  under  the  treaty  of  1839, 
the  sum  of  $41,306.41.  The  estate  of  Williams  has  never  expended 
a  dollar  towards  recovering  it,  nor  has  Oliver  ever  received  any  com- 
pensation for  his  services.  The  amount  may  seem  large,  but  we  can- 
not say  the  court  below  was  not  warranted  in  allowing  it,  upon  the 
proofs  in  the  case  of  the  great  service  rendered,  and  of  the  customary 
charges  in  similar  cases. ^ 

'A   portion   of    the    opinion   relating   to    questions    of    practice    has    been 
omitted. — Ed. 


CHAP.    I.]  ISLE   ROYALE   MINING   CO.    V.    JOHN    IIERTIN.  333 

Upon  the  whole,  we  are  satisfied  the  decree  of  the  court  below  was 
right,  and  ought  to  be  affirmed. 
Mr.  Justice  Gkier  dissented.^ 


THE  ISLE  EOYALE  MINING  COMPANY  v.  JOHN  HERTIN 
AND  MICHAEL  HERTIN. 

Supreme  Court  of  Michigan,  1877. 

[37  Michigan  Reports,  332.] 

Trover  and  indebitatus  assumpsit.     The  facts  are  in  the  opinion. 

CooLEY,  C.  J.  The  parties  to  this  suit  were  owners  of  adjoining 
tracts  of  timbered  lands.  In  the  winter  of  1873-74  defendants  in 
error,  who  were  plaintiffs  in  the  court  below,  in  consequence  of  a 
mistake  respecting  the  actual  location,  went  upon  the  lands  of  the 
mining  company  and  cut  a  quantity  of  cord  wood,  which  they  hauled 
and  piled  on  the  bank  of  Portage  Lake.  The  next  spring  the  wood 
was  taken  possession  of  by  the  mining  company,  and  disposed  of  for 
its  own  purposes.  The  wood  on  the  bank  of  the  lake  was  worth  $2.87^ 
per  cord,  and  the  value  of  the  labor  expended  by  plaintiffs  in  cutting 
and  placing  it  there  was  $1.87^  per  cord.  It  was  not  clearly  shown 
that  the  mining  company  had  knowledge  of  the  cutting  and  hauling 
by  the  plaintiffs  while  it  was  in  progress.  After  the  mining  company 
had  taken  possession  of  the  wood,  plaintiffs  brought  this  suit.  The 
declaration  contains  two  special  counts,  the  first  of  which  appears  to 
be  a  count  in  trover  for  the  conversion  of  the  wood.  The  second  is 
as  follows- : — 

The  circuit  judge  instructed  the  jury  as  follows: 

"If  you  find  that  the  plaintiffs  cut  the  wood  from  defendant's  land 
by  mistake  and  without  any  wilful  negligence  or  wrong,  I  then  charge 
you  that  the  plaintiffs  are  entitled  to  recover  from  the  defendant  the 
reasonable  cost  of  cutting,  hauling,  and  piling  the  same."  This  pre- 
sents the  only  question  it  is  necessary  to  consider  on  this  record.  The 
jury  returned  a  verdict  for  the  plaintiffs. 

Some  facts  appear  by  the  record  which  might  perhaps  have  war- 
ranted the  circuit  judge  in  submitting  to  the  jury  the  question  whether 
the  proper  authorities  of  the  mining  company  were  not  aware  that 
the  wood  was  being  cut  by  the  plaintiffs  under  an  honest  mistake  as 
to  their  rights,  and  were  not  placed  by  that  knowledge  under  obliga- 

^Aceord:     Railway    r.   Pierce    (1004).   98   Mo.   ,^28.— En. 

-Declaration  omitted.  The  plaintifTs  stated  in  brief  that  their  labor  in 
cuttiner.  splittinji;,  Iiaulinjr  and  pilinj:  the  wood  in  question  enhanced  its  value 
by  $2000,  and  they  counted  in  assumpsit  for  that  sum. — Ed. 


334  ISLE   ROYALE   MINING   CO.    V.   JOHN   HERTIN.  [BOOK    II. 

tion  to  notify  the  plaintiffs  of  their  error.  But  as  the  case  was  put 
to  the  jury,  tlie  question  presented  by  the  record  is  a  narrow  question 
of  law,  which  may  be  stated  as  follows:  whether,  where  one  in  an 
honest  mistake  regarding  his  rights  in  good  faith  performs  labor  on 
the  property  of  another,  the  benefit  of  which  is  appropriated  by  the 
owner,  the  person  performing  such  labor  is  not  entitled  to  be  com- 
pensated therefor  to  the  extent  of  the  benefit  received  by  the  owner 
therefrom?  The  affirmative  of  this  proposition  the  plaintiffs  under- 
took to  support,  having  first  laid  the  foundation  for  it  by  showing 
the  cutting  of  the  wood  under  an  honest  mistake  as  to  the  location 
of  their  land,  and  taking  possession  of  the  wood  afterwards  by 
the  mining  company,  and  its  value  in  the  condition  in  which  it 
then  was  and  where  it  was,  as  compared  with  its  value  standing  in 
the  woods. 

We  understand  it  to  be  admitted  by  the  plaintiffs  that  no  authority 
can  be  found  in  support  of  the  proposition  thus  stated.  It  is  conceded 
that  at  the  common  law  when  one  thus  goes  upon  the  land  of  another 
on  an  assumption  of  ownership,  though  in  perfect  good  faith  and 
under  honest  mistake  as  to  his  rights,  he  may  be  held  responsible  as  a 
trespasser.  His  good  faith  does  not  excuse  him  from  the  payment 
of  damages,  the  law  requiring  him  at  his  peril  to  ascertain  what  his 
rights  are,  and  not  to  invade  the  possession,  actual  or  constructive, 
of  another.  If  he  cannot  thus  protect  himself  from  the  payment  of 
damages,  still  less,  it  would  seem,  can  he  establish  in  himself  any 
affirmative  rights,  based  upon  his  unlawful,  though  unintentional 
encroachment  upon  the  rights  of  another.  Such  is  unquestionably  the 
rule  of  the  common  law,  and  such  it  is  admitted  to  be. 

It  is  said,  however,  that  an  exception  to  this  rule  is  admitted  under 
certain  circumstances,  and  that  a  trespasser  is  even  permitted  to  make 
title  in  himself  to  the  property  of  another,  where  in  good  faith  he 
has  expended  his  own  labor  upon  it,  under  circumstances  which  would 
render  it  grossly  unjust  to  permit  the  other  party  to  appropriate  the 
benefit  of  such  labor.  The  doctrine  here  invoked  is  the  familiar  one 
of  title  by  accession,  and  though  it  is  not  claimed  that  the  present 
case  is  strictly  within  it,  it  is  insisted  that  it  is  within  its  equity, 
and  that  there  would  be  no  departure  from  settled  principles  in  giving 
these  plaintiffs  the  benefit  of  it. 

The  doctrine  of  title  by  accession  is  in  the  common  law  as  old  as 
the  law  itself,  and  was  previously  known  in  other  systems.  Its  general 
principles  may  therefore  be  assumed  to  be  well  settled.  A  wilful 
trespasser  who  expends  his  money  or  labor  upon  the  property  of 
another,  no  matter  to  what  extent,  will  acquire  no  property  therein, 
but  the  owner  may  reclaim  it  so  long  as  its  identity  is  not  changed 
l>y  conversion  into  some  new  product.  Indeed  some  authorities  hold 
that  it  may  be  followed  even  after  its  identity  is  lost  in  a  new  product; 
that  grapes  may  be  reclaimed  after  they  have  been  converted  into 


ClIAr.    I.]  ISLE   ROYALE   MINING   CO.    V.    JOHN    HERTIN.  335 

wine,  and  grain  in  the  form  of  distillcfl  liquors.  Silsbury  v.  McCoon, 
3  N.  Y.  379.  Sec  Riddle  v.  Driver,  12  x\la.  5i)n.  And  while  other 
authorities  refuse  to  go  so  far,  it  is  on  all  hands  conceded  that  where 
the  appropriation  of  the  property  of  another  was  accidental  or  through 
mistake  of  fact,  and  labor  has  in  good  faith  been  expended  upon  it 
which  destroys  its  identity,  or  converts  it  into  something  sul)stantially 
different,  and  the  value  of  the  original  article  is  insignificant  as  com- 
pared with  the  value  of  the  new  product,  the  title  to  the  property  in 
its  converted  form  must  be  held  to  pass  to  the  person  by  whose  labor 
in  good  faith  the  change  has  been  wrought,  the  original  owner  being 
permitted,  as  his  remedy,  to  recover  the  value  of  the  article  as  it  was 
before  the  conversion.  This  is  a  thoroughly  equitable  doctrine,  and 
its  aim  is  so  to  adjust  the  rights  of  the  parties  as  to  save  both,  if 
possible,  or  as  nearly  as  possible,  from  any  loss.  But  where  the 
identity  of  the  original  article  is  susceptible  of  being  traced,  the  idea 
of  a  change  in  the  property  is  never  admitted,  unless  the  value  of 
that  which  has  been  expended  upon  it  is  sufficiently  great,  as  compared 
with  the  original  value,  to  render  the  injustice  of  permitting  its  appro- 
priation by  the  original  owner  so  gross  and  palpable  as  to  be  apparent 
at  the  first  blush.  Perhaps  no  case  has  gone  further  than  Wetherbee  v. 
Green,  22  Mich.  311,  in  which  it  was  held  that  one  who,  by  unin- 
tentional trespass,  had  taken  from  the  land  of  another  young  trees 
of  the  value  of  $25,  and  converted  them  into  hoops  worth  $700,  had 
thereby  made  them  his  own,  though  the  identity  of  trees  and  hoops 
wa's  perfectly  capable  of  being  traced  and  established. 

But  there  is  no  such  disparity  in  value  between  the  standing  trees 
and  the  cord  wood  in  this  case  as  was  found  to  exist  between  the  trees 
and  the  hoops  in  Wetherbee  v.  Green.  The  trees  are  not  only  sus- 
ceptible of  being  traced  and  identified  in  the  wood,  but  the  difference 
in  value  between  the  two  is  not  so  great  but  that  it  is  conceivable  the 
owner  may  have  preferred  the  trees  standing  to  the  wood  cut.  The 
cord  wood  has  a  higher  market  value,  but  the  owner  may  have  chosen 
not  to  cut  it,  expecting  to  make  some  other  use  of  the  trees  than  for 
fuel,  or  anticipating  a  considerable  rise  in  value  if  they  were  allowed 
to  grow.  It  cannot  be  assumed  as  a  rule  that  a  man  prefers  his  trees 
cut  into  cord  wood  rather  than  left  standing,  and  if  his  right  to  leave 
them  uncut  is  interfered  with  even  by  mistake,  it  is  manifestly  just 
that  the  consequences  should  fall  upon  the  person  committing  the 
mistake,  and  not  upon  him.  Nothing  could  more  encourage  careless- 
ness than  the  acceptance  of  the  principle  that  one  who  by  mistake 
performs  labor  upon  the  property  of  another  should  lose  nothing  by 
his  error,  but  should  have  a  claim  upon  the  owner  for  remuneration. 
Why  should  one  be  vigilant  and  careful  of  the  riglits  of  others,  if  such 
were  the  law?  Whether  mistaken  or  not  is  all  the  same  to  him,  for 
in  either  case  he  has  employment  and  receives  his  remuneration ;  while 
the  inconveniences,  if  any,  are  left  to  rest  with  the  innocent  owner. 


336  OSBORN    V.    THE    GOVERNORS    OF    GUY's    HOSPITAL.       [BOOK    II, 

Such  a  doctrine  offers  a  premium  to  heedlessness  and  blunders,  and  a 
temptation  by  false  evidence  to  give  an  intentional  trespass  the  appear- 
ance of  an  innocent  mistake. 

A  case  could  seldom  arise  in  which  the  claim  to  compensation  could 
be  more  favorably  presented  by  the  facts  than  it  is  in  this;  since  it  is 
highly  probable  that  the  defendant  would  suffer  neither  hardship  nor 
inconvenience  if  compelled  to  pay  the  plaintiffs  for  their  labor.  But 
a  general  principle  is  to  be  tested,  not  by  its  operation  in  an  individual 
case,  but  by  its  general  workings.  If  a  mechanic  employed  to  alter 
over  one  man's  dwelling-house,  shall  by  mistake  go  to  another  which 
happens  to  be  unoccupied,  and  before  his  mistake  is  discovered,  at  a 
large  expenditure  of  labor  shall  thoroughly  overhaul  and  change  it, 
will  it  be  said  that  the  owner,  who  did  not  desire  his  house  disturbed, 
must  either  abandon  it  altogether,  or  if  he  takes  possession,  must 
pay  for  labor  expended  upon  it  which  he  neither  contracted  for, 
desired,  nor  consented  to?  And  if  so,  what  bounds  can  be  prescribed 
to  which  the  application  of  this  doctrine  can  be  limited?  The  man 
who  by  mistake  carries  off  the  property  of  another  will  next  be 
demanding  payment  for  the  transportation;  and  the  only  person 
reasonably  secure  against  demands  he  has  never  assented  to  create, 
will  be  the  person  who,  possessing  nothing,  is  thereby  protected  against 
anything  being  accidentally  improved  by  another  at  his  cost  and  to  his 
ruin. 

The  judgment  of  the  Circuit  Court  must  be  reversed,  with  costs 
and  a  new  trial  ordered. 

The  other  Justices  concurred.^ 


2.    THE   BENEFIT   WAS   CONFERRED  AT  REQUEST,  BUT  NOT  IN  THE   CRE- 
ATION OR  PERFORMANCE  OF  A  CONTRACT. 

OSBORX  V.  THE  GOVERNOES  OF  GUY'S  HOSPITAL. 

At  Guildhall,  before  Raymond,  C.  J.,  Michaelmas  Term,  1727. 

[2  Strange,  728.] 

The  plaintiff  brought  a  quantum  meruit  pro  opere  et  lahore  in 
transacting  Mr.  Guy's  stock  affairs  in  the  year  1720.  It  appeared  he 
was  no  broker,  but  a  friend ;  and  it  looked  strongly  as  if  he  did  not 
expect  to  be  paid,  but  to  be  considered  for  it  in  his  will.  And  the 
Chief  Justice  directed  the  jury,  that  if  that  was  the  case,  they  could 

'Afcord:  (iaskins  v.  Davis  (1S93)  115  N.  C.  85.  See  note  on  this  subject 
in  8  Harv.  L.  R.  350.— Ed. 


CHAP.    I.]  LIVINGSTON  V.  ACKESTON.  337 

not  find  for  the  plaintiff,  though  nothing  was  given  him  by  the  will ; 
for  they  should  consider  how  it  was  understood  by  the  parties  at  the 
time  of  doing  the  business,  and  a  man  who  expects  to  be  made  amends 
by  a  legacy  cannot  afterwards  resort  to  his  action.^ 


LIVINGSTON  V.  ACKESTON. 

Supreme  Court  of  New  York,  1826. 

[5  Cowen,  531.] 

On  error  for  C.  P.  of  Columbia.  The  action  below  was  assumpsit 
for  work  and  labor  by  Ackeston  against  Livingston;  and  the  verdict 
and  judgment  was  for  the  plaintiff,  on  the  facts  stated  in  a  bill  of 
exceptions,  upon  which  the  writ  of  error  was  founded.  Those  facts 
were,  that  Ackeston,  a  black  man,  worked  for  Livingston,  from  the 
spring  of  1819  till  June,  1820,  when  he  sold  him  to  one  Benn.  That 
Livingston  had  bought  him  of  one  Ham,  as  a  slave  or  servant,  at 
$200;  and  that  he  was  to  serve  till  he  was  28  years  old.  That  he 
became  dissatisfied  and  procured  Benn  to  purchase  him  of  Livingston. 
That  Ackeston  was  born  of  black  parents,  who  kept  house  and  acted 
for  themselves  as  long  ago  as  1798,  in  which  year  he  was  born.  The 
parents  had  before  been  slaves  to  one  Dings.  Ham  had  also  bought 
Ackeston  as  a  servant  till  he  was  28.  He  was  sold  to  Livingston 
at  16  years  and  -1  months  old. 

The  counsel  for  the  defendant  below  moved  for  a  nonsuit,  on  the 
ground  that  there  was  no  contract  to  pay  wages,  and  none  could  be 
implied,  between  the  parties.    But  the  motion  was  overruled. 

Curia,  per  Sutherland,  J.  The  plaintiff,  upon  the  evidence  in 
the  case,  must  be  considered  as  having  been  a  freeman,  during  the 
period  he  was  in  the  service  of  the  defendant.  But  the  defendant 
purchased  him  as  a  slave  in  perfect  good  faith,  for  a  large  and  valu- 
able consideration.  The  pljirnjjff  snppng£d_himself  to  have  been  a 
slave;  and  at  his  own  request,  was  sold  by  the  defendant  to  a~p^son 

^\cf'orcl:  Le  Sajje  v.  Coussmaker  (1704),  1  Esp.  1S7  ("Ilis  LortUhip  [Ken- 
yon]  arldod,  that  the  law  was  well  settled,  that  if  the  plaint! IV  had  undertaken 
the  several  services  proved,  without  any  view  to  a  reward,  but  with  a  view  to  a 
lejjaoy,  that  he  could  not  set  up  any  demand  ajjainst  the  testator's  estate, 
but  of  that  the  jury  were  to  decide")  ;  Lee  v.  Lee  &  Welch  (1834),  6  Gill  &  J. 
31G;  Mundorff  v.  Kilbourn  (1853),  4  Md.  459;  Collyer  v.  Collyer  (1889), 
113  N.  Y.   442. 

Rut  if  the  services  are  not  fn'atuitously  rendered  although  nothing  be 
said  at  the  time  of  the  transaction,  the  mere  expectation  of  a  legacy  will 
not  bar  a  recovery.    Baxter  v.  Gray  ( 1842) ,  4  Scott.  X.  S.  374.— Ed. 


338  LIVIXGSTOX   V.  ACKESTON,  [BOOK    II. 

whom  the  plaintiff  had  induced  and  procured  to  purchase  him.  There 
is  no  pretence  of  an  express  promise,  on  the  part  of  the  defendant, 
to  pay  the  phiintitf  for  his  services;  and  the  question  is,  whether, 
under  the  circumstances  of  this  case,  such  a  promise  is  to  be  implied. 
No  doubt  the  services  of  the  plaintiff,  having  been  performed  for  the 
benefit  of  the  defendant,  with  his  knowledge  and  approbation,  the  law 
will  imply  a  promise  to  pay  for  them,  unless  it  appears  they  under- 
stood that  no  compensation  was  to  be  made.  Jacobson  v.  Executors 
of  Le  Grange,  3  John.  201.  In  this  case,  it  clearly  appears,  that  such 
was  the  understanding  of  the  plaintiff',  as  well  as  the  defendant. 
The  plaintiff  knew,  and  admitted,  that  the  defendant  had  purchased 
his  time,  until  he  was  28  years  of  age;  that  he  paid  200  dollars  for 
it ;  that  he  was  entitled  to  his  services.  He  procured  another  person 
to  purchase  the  unexpired  term  of  his  services,  from  the  defendant ; 
thereby  admitting  the  defendant's  right  to  sell  it.  The  law,  under 
such  circumstances,  cannot  raise  an  implied  assumpsit. 

The  case  of  Alfred  v.  Fitz  James,  3  Esp.  Rep.  4,  is  precisely  in 
point.  It  appeared,  in  that  case,  that  the  plaintiff,  a  colored  man, 
came  over  from  Martinique  with  the  dutchess  of  Fitz  James,  having 
been  born  a  slave  on  an  estate  belonging  to  her  in  that  Island.  There 
was  no  contract  of  hiring  for  wages;  but  a  witness  said  the  marquis 
had  been  heard  to  promise  him  wages.  Ld.  Kexyon  ruled,  that  up 
to  the  time  of  the  promise  to  pay  wages,  the  plaintiff  could  not  re- 
cover, as  there  was  no  original  contract  of  service  for  wages.  (And 
vid.  1  Com.  on  Contr.  227.) 

The  case  of  Cook  v.  Husted,  12  John.  188,  has  no  analogy  to  this. 
There  Cook  purchased  the  time  of  a  black  girl  from  one  Israel  Pugsley. 
She  did  not,  in  fact,  belong  to  Pugsley,  but  to  Sarah  Husted,  the  plain- 
tiff; and  the  action  was  brought  by  her  to  recover  the  value  of  her 
services  while  she  lived  with  the  defendant.  Having  shown  the  slave 
to  be  hers,  and  to  have  performed  services  for  the  defendant,  she  was, 
of  course,  entitled  to  be  paid  for  them,  unless  there  was  something 
to  show  the  parties  understood  that  no  compensation  was  to  be  made. 
There  was  nothing  of  that  kind  in  the  case;  or  from  which  it  could 
be  inferred. 

Judgment  reversed.' 

'Accord:   Negro  Franklin  v.  Waters   (1849)   8  Gill,  322.— Ed. 


CHAP.   I.]  SWIRES   V.    PARSONS.  339 

SWIRES  V.  PAKSONS. 

Supreme  Court  of  Pexnsylvaxia,  1843. 

[5  Waits  &  Sergeant,  357.] 

This  was  an  action  of  assumpsit,  brought  by  Susan  Swires,  alias 
Susan  Parsons,  against  the  administrators  of  Isaac  Parsons,  de- 
ceased, to  recover  compensation  for  work,  labour  and  service  per- 
formed for  the  intestate  in  his  lifetime.  The  proof  was,  that_tiie 
plaintiff  had  lived  for  many  years  with  the_iQfesIaie^IIaBd--per=^ 
fornaed  the  labolir  and  "services  as  allegedY  and  the  witnesses  testi- 
fied  that  she  lived  with  MB3:-as.Jiis._wife,_an.d  was  repnted  as_J^ch. 

The  opinion  of  the  CourT was  delivered  by  Kogers,  J. 

We  cannot  undertake  to  say  that  there  was  error  in  charging  the 
jury  that,  under  the  circumstances  in  proof,  the  plaintiff  was  not  en- 
titled to  recover.  They  were  right  in  ordering  judgment  to  be  entered 
for  the  defendants.  The  evidence  establishes  one  of  two  things,  either 
that  the  plaintiff  and  intestate  were  married,  or  that  she  was  living 
in  a~?tate  of  concubinage.  They  lived  as  man  ,and  wiie,— aftd-^ere 
gen(?Tatly~reputed  to  be  so,  as  the  witnesses  all  concur  in  saying. 
Either  position  is  fatal  to  the  claim  for  compensation, jmless  in_  the 
latter  case  there  was  super-added  proof  of  a  contract  of  hiring,  of 
which  there  is  not  a  shadow  of  evidence.  Without  this  consideration, 
however  meritorious  her  services  may  have  been  in  one  aspect,  the 
action  cannot  be  sustained.  The  action  of  assumpsit  is  founded  on 
contract,  either  express  or  implied ;  and  as  an  express  contract  is  out 
of  the  question,  the  action  must  be  maintained,  if  at  all,  on  the  im- 
plied promise.  But  this  cannot  be,  for  if  a  man  work  for  another 
merely  with  a  view  to  a  legacy,  he  cannot  afterwards  resort  to  an  action 
on  an  implied  assumpsit.  In  Osborn  v.  The  Governors  of  Guy's 
Hospital,  2  Stra.  728,  where  this  principle  was  first  ruled,  it  is  said. 
"The  court  must  consider  how  it  was  understood  by  the  parties  at 
the  time  of  doing  the  business,  and  a  man  who  expects  to  be  made 
amends  by  a  legacy  cannot  afterwards  resort  to  his  action."  This 
principle  applies  to  tlie  case  in  hand,  and  has  been  since  recognised 
in  Little  v.  Dawson,  4  Dall.  Ill ;  Jamison  v.  Executors  of  Le  Grange. 
3  Johns.  Rep.  199 ;  to  which  may  be  added.  T^rie  v.  Johnson,  3  Penn. 
Rep.  212.  It  is  enough  for  the  plaintiff,  prima  facie,  to  show  labour 
performed,  to  raise  an  implied  assumpsit  to  pay  for  it.  But  the  facts 
in  evidence  rebut  the  implication  of  a  promise,  which  would  otlier- 
wise  arise ;  for  the  relation  which  they  bore  to  each  other  is  incon- 
sistent with  any  understanding  for  compensation.  As  it  is  a  situation 
in  which  she  voluntarily  placed  herself,  she  must  rely  upon  liis 
bounty  for  support.    She  cannot  now  turn  round  and  rely  upon  com- 


340  LANTZ    V.    FREY    AND    WIFE.  [BOOK    II. 

pensation  founded  on  the  relation  of  master  and  servant.  If  the 
woman  can  maintain  suit  against  the  man,  cases  may  occur  where  the 
man  may,  by  parity  of  reasoning,  maintain  suit  against  the  woman; 
and  it  may  sometimes  be  a  difficult  matter  to  settle  the  account 
between  them.  A  man  cannot  be  made  a  debtor  against  his  will; 
and  although  cases  may  be  readily  supposed  of  great  hardship  and 
apparent  injustice,  as  where  the  woman  has  been  the  victim  of  a 
base  deception,  thinking  herself  married  when  she  is  not,  yet  we 
cannot  yield  to  such  considerations  on  reasons  of,  at  least,  doubtful 
policy.^ 

Judgment  affirmed. 


LAKTZ  V.  FREY  AND  WIFE. 

Supreme  Court  of  Pennsylvania,  1850. 

[14  Pennsylvania,  201.] 

Error  to  the  Common  Pleas  of  Erie  county. 

This  was  an  action  of  assumpsit,  brought  by  Frey  and  his  wife, 
against  John  Lantz,  the  plaintiff  in  error,  to  recover  upon  an  implied 
assumpsit  for  the  services  of  the  wife  of  defendant  in  error,  under 
the  following  circumstances :  The  said  Lantz  married  a  widow,  the 
mother  of  the  wife  of  said  Frey.  The  child  at  the  time  of  the 
marriage  was  eight  or  nine  years  old;  she  went  with  her  mother  after 
the  marriage,  and  lived  in  the  family  of  Lantz,  the  stepfather,  as  one 
of  his  own  children,  without  any  contract  whatever.  On  the  part 
of  Lantz,  it  was  alleged  that  she  was  fed,  clothed,  and  schooled,  the 
same  as  his  own  child,  and  she  worked  in  the  family  in  the  same 
manner,  until  she  was  between  eighteen  and  nineteen  years  old.  when 

'In  Louisiana,  however,  the  contrary  doctrine  exists  and  seems  well  estab- 
lished. In  The  Succession  of  Llula  (1892)  44  La.  Ann.  161,  the  court  said  in 
affirming  a  judfrment  of  the  lower  court:  "The  plaintiff  and  her  alleged  hus- 
band entered  into  an  adulterous  connection,  and  the  relations  between  the 
parties  were  such  that  no  marriage  could  have  been  contracted  between  them 
when  they  first  assumed  this  re.lationship  to  each  other.  The  fact  that  the  hus- 
band died  during  this  illicit  connection  cannot  give  a  character  to  it  which  it 
did  not  have  when  it  was  first  formed.  It  continued  as  it  had  begun.  The  fact 
that  he  treated  the  plaintifT  as  his  wife,  and  introduced  her  as  such  in  the  com- 
munity, could  not  destroy  or  do  away  with  the  actual  truth  of  their  relation- 
ship, nor  could  it  remove  from  the  plaintifT  the  knowledge  that  she  was  a 
married  woman  when  she  deserted  her  husband  and  went  to  live  with  Llula. 
She  was  not  in  good  faith,  as  she  knew  that  her  husband  was  living  and  that 
she  could  not  become  the  wife  of  Llula.  It  was  not  possible  for  her  to  be 
imposed  upon.  She  was  his  concubine  and  can  assert  her  rights  only  in  that 
capacity.   When  the  relation  of  concubinage  is  incidental  and  is  not  the  motive 


CHAP.    I.]  LANTZ    V.    FREY    AND    WIFE.  341 

she  married  Jacob  Frey.  Soon  after  her  marriage^she  and  her  hus- 
band. brought  this  action  to  recover  wages  for  the  time  she  lived  in 
thellamily  of  her  stepfather-  The  court  charged  the  jury  that  the 
plaintiffs  below  were  entitled  to  recover  upon  the  quantum  meruit; 
of  which  charge  and  instruction  of  the  court,  the  plaintiff  in  error 
complains. 

There  was  evidence  on  the  part  of  plaintiffs,  that  the  child  lived 
with  its  uncle  until  its  mother  married  Lantz;  that  Lantz  said, 
if  she  would  come  and  live  with  him,  he  would  use  her  as  one  of  his 
own  children.  That  she  worked  Jaithfull}^ — was  poorly  dad — she 
was  not  sentjnucirto^school ;  that^he  w"^^<"pd  in  tViP  faTnily^  IiVp  thp 
other  children. 

On  the  part  of  defendant,  that  she  was  sick  considerable;  that 
she  was  clothed  as  other  girls  in  similar  circumstances;  that  she 
can  read. 

The  opinion  of  the  court  was  delivered,  September  30th,  by  Bell,  J. 

The  plaintiffs'  declaration  is  upon  a  contract.  In  order  to  re- 
cover, they  must,  consequently,  prove  an  express  contract,  or  show 
such  circumstances  as  will  raise  an  implied  one.  The  first  is 
not  pretended,  and  we  think  the  evidence  discloses  facts  which  pre- 
clude the  last. 

The  defendant  intermarried  with  the  female  plaintiff's  mother, 
after  which  the  child  went  to  reside  in  the  family  of  her  stepfather, 
until  she  herself  married.  By  this  arrangement,  defendant  stood  in 
loco  parentis,  and  was  responsible  for  the  maintenance  and  educa- 
tion of  the  child,  so  long  as  she  continued  to  reside  with  him.  2  Kent's 
Com.  192 ;  Stone  v.  Carr,  3  Esp.  Cas.  1 ;  Cooper  v.  Martin,  4  East.  76. 
Now  nothing  is  better  settled  than  that  a  child  is  not  entitled  to 
demand  wages  from  a  parent,  for  services  rendered  after  attaining 
full  age,  in  the  absence  of  express  contract,  or  something  equivalent 
to  it  (Walker's  Estate,  3  Eawle,  343;  Candor  v.  Candor,  5  W.  &  Ser. 

and  cause  of  the  parties  living  together,  the  concubine  can  recover  from  the 
estate  of  the  deceased,  if  it  has  been  enriched  by  her  industry.  There  is  a 
gM«.S!-eontract  on  the  part  of  the  deceased  to  make  compensation.  Succession 
of  Pereuilhct    [1871]    23  An.  294;   Delamour   v.  Roger   [1852]    7   An.   1.52." 

In  the  Pereuilhet  case,  supra,  the  woman  acted  as  nurse  and  housekeeper 
as  well  as  concubine,  and  was  permitted  to  recover  on  the  ground  that  the 
services  were  rendered  under  circumstances  not  presumed  to  be  gratuitous. 
"It  is  clear,"  said  the  court,  "from  the  record  in  this  case,  that  the  estate  of 
Pereuilhet  was  considerably  enriched  by  the  industry  and  the  patient  care 
of  the  opponent.  If  he  had  hired  other  servants  and  nurses,  the  amount 
coming  to  the  heirs  who  now  resist  her  claims  would  have  been  considerably 
reduced.  We  gather  from  the  record  as  a  whole,  a  (jwasi-contract  on  the  part 
of  the  deceased  to  compensate  the  opponent  for  the  services  mentioned." 

See,  also.  Succession  of  Morvant  (18P4)  46  La.  Ann.  301:  and  the  case  of 
Rhodes  v.  Stone  (1892)   17  N.  Y.  Supp.  561.— Ed. 


342  LAXTZ    V.    FREY    AND    WIFE.  [BOOK    II. 

513)  ;  a  principle  which  embraces  also  the  liabilities  of  persons  whom 
the  law  regards  as  standing  in  that  relation,  although  connected  by  no 
ties  of  blood.  It  was  upon  this  ground  that  Defrance  v.  Austin, 
9  Barr,  309,  was  decided,  and  a  kindred  principle  ruled  the  cases 
of  Little  V.  Dawson,  4  Dal.  100,  and  Swires  v.  Parsons,  5  W.  &  Ser. 
357.  In  the  first  of  these  cases,  a  minor  nephew  was  not  permitted 
to  recover  for  services  rendered  to  an  uncle,  who  had  received  him 
as  one  of  his  own  family;  in  the  second,  there  was  a  similar  denial, 
Avliere  the  services  were  rendered  in  expectation  of  a  legacy;  and  in 
the  last,  a  woman  who  had  lived  in  a  state  of  concubinage,  was  un- 
successful in  her  claim  to  be  remunerated  from  the  estate  of  the  man 
towards  whom  she  had  discharged  the  duties  of  a  wife  and  house- 
keeper. Each__of_jLhese  determinations  is^based  on__the  irresistible 
presumption,  springing  f^om  the  relation  of  the  parties,  that  neither 
o|  them^-contemplated  remuneration  by  the  payment  of  wages,  an^ 
in  the  impolicy  of  sanctioning  claims  not  streamed  of  at  the  time^ 
of  tKe  transaction.  This  impolicy  is  peculiarly  apparent  where  the 
relation  of  aduTt  protection  and  infant  dependence  exists;  the  latter 
expecting  naught  beyond  shelter,  food,  clothing,  and  education,  and 
the  former  enjoying,  as  of  course,  whatever  services  the  weaker  party 
is  able  to  render.  Such  was  the  relative  position  of  these  parties; 
the  girl  living  in  the  house  of  her  mother's  husband  as  a  member  of 
the  family,  and  the  husband  regarding  her  as  the  child  of  his  wife,  and 
not  as  a  menial  or  hireling. 

The  general  law  springing  from  this  condition  of  things,  as  I  have 
stated  it,  was  recognized  by  the  court  below,  in  the  answer  returned 
to  the  defendant's  point  submitted.  But  the  learned  president,  moved 
by  the  imputed  neglect  of  the  stepfather  in  the  discharge  of  the  duty 
he  owed  to  the  child,  and  by  the  severity  of  the  labor  to  which  he 
appears,  in  some  measure,  to  have  devoted  her,  thought  the  plaintiff 
might  be  entitled  to  recover  remuneration  for  the  defendant's  re- 
missness and  harshness.  In  indulging  this  impression,  however, 
the  court  forgot  the  action  was  to  recover  for  services  rendered,  and 
not  for  any  supposed  neglect  of  legal  duty  on  the  part  of  the  de- 
fendant. Whether  such  an  action  will  lie  in  a  proper  ease,  I  will 
not  take  it  upon  me  to  say,  for  the  simple  reason  that  no  such  claim 
is  set  up  here.  But  I  may  say  that  any  device,  designed  to  enable 
the  child  of  a  widowed  mother  to  assume  towards  a  second  husband 
the  attitude  of  creditor  for  services  rendered  while  living  in  the 
family  as  a  member  of  it,  ought  to  be  be  discouraged,  because  of  the 
results  it  must  inevitably  produce.  Men  will  decline  to  extend  their 
protection  and  aid  to  orphan  children,  at  the  hazard  of  being  ex- 
posed to  suits  at  law  on  the  suggestion  of  ill-natured  neighbors  or 
exacting  friends,  that  the  stepchild  has  been  harshly  treated  or  in- 
adequately provided  for.  Every  one  of  the  least  experience  knows 
how  difficult  at  best  it  is  to  escape  such  imputations;  and  should  we 


CIIAI'.    I.J  DONAHUE    V.    DOXAHUE.  343 

« 

permit  cynicism  to  be  stimulated  by  the  chances  of  encouraged  liti- 
gation, it  will  l)e  dillicult  to  foresee  the  extent  of  evil  which  may  be 
produced.  That  one  who  assumes  the  office  of  parent  may  so  grossly 
violate  the  duties  aj)pertaining  to  it,  as  to  subject  himself  to  answer 
at  the  suit  of  the  injured  party,  is  possible;  though  I  am  unaware 
of  any  example  of  sucli  an  action.  Certainly  it  will  not  lie  against 
a  natural  parent,  and  many  reasons  might  be  urged  for  extending 
the  same  immunity  to  him  whom  the  law,  for  many  purposes,  re- 
gards as  a  father's  substitute.  But  should  these  be  deemed  insuffi- 
cient for  his  entire  protection,  it  is  not  to  bo  doubted  that  to  justify 
legal  interference,  a  very  gross  case  should  be  clearly  established  by 
proof.  These  speculations  are,  however,  aside  from  the  question  pre- 
sented in  this  action,  which  has  already  been  answered  adversely  to 
the  pretensions  of  the  plaintiffs  below. 

Judgment  reversed  and  a  venire  de  novo  awarded.^ 


In  Donahue  v.  Donahue  (1893),  53  Minn.  4G0,  461,  Gilfillan, 
C.  J.,  said: 

The  evidence  was  abundant  to  sustain  a  finding  that,  while  the 
plaintiff  continued  to  work  for  his  father  after  he  became  of  age, 
there  was  an  agreement  between  them  that  the  father  should  pay  him 
for  his  work.  Of  course^  from  the  Jactalpue^  that  tlie  son  continut'd 
after  he  became  oflTge.  a  member  of  the  father's  family,  working  for 
h i ifi^^£p a r enUy  as  Tiefore  lie  he?ame~df  ageT^ioTagreement  to  pay  him 
for  his  work  wouTdTbe  implied,  Buf  fhe  presuinption  woutd  be  thar 
he^wqrkecT  for  his  support,  as  while  a  minoX:^  But  the  evldence3'^ 
sufjicjent  to  overcome  that  presumption,  and  justify  a  finding  that 
there  was  an  agreement  to  pay.  ATTtBat^ould  beTeq'uired  •ffras'that 
it  was  suek-««-te^-rea«on*Wr-satisfy  the  jury  of  the  fact.  It  might 
be  indirect  or  circumstantial ;  shown  by  the  conduct  or  conversations 
of  the  parties,  or  admissions  by  the  father. 

The  statement  in  the  appellant's  second  request  to  charge,  that 
"the  evidence  must  be  clear,  direct,  and  certain,"  might  have  misled 

'Fitch  V.  Peckham  (1844)  10  Vt.  150;  Andrus  v.  Foster  (1845)  17  Vt.  55G 
(case  of  foster  child)  ;  Sawyer  v.  Hehard  (1886)  58  Vt.  375  (suit  by  son-in- 
law  to  recover  l)oard  for  mother-in-law);  Mosteller's  (1858)  30  Pa. 
St.  473;  Thompson  v.  Stevens  (1872)  71  Pa.  St.  IGl  (housekeeper's  case); 
Houck  V.  Houck  (1882)  nO  Pa.  St.  552;  Page  v.  Snell  (1880)  59  N.  H.  531 
(nursing);  Hudson  r.  Hudson  (1892)  90  Ga.  581  (nursing).  See  also 
Munger  v.  Munger  (1856)  33  N.  H.  581;  Hall  v.  Hall  (1862)  44  N.  H.  293 
(a  digest  of  authorities)  ;  Moore  v.  Moore  (1860)  3  Abb.  App.  303;  Bixley 
r.  Sellman  (1893)  77  Md.  494;  Taggart  r.  Taggart  (1891)  27  N.  E.  511 
(Ind.)  :  ^Marion  v.  Farnam  (1893)  22  X.  Y.  Supp.  946;  Fuller  v.  Mowtj 
(1893)    18  R.  I.  424.— Ed. 


3-i4  HICKAM   V.   HICKAM,  [BOOK   II. 

the  jury  to  suppose  that,  to  justify  a  finding  that  there  was  such  an 
agreement,  it  must  have  been  directly  testified  to  by  some  witness 
who  heard  it  made,  and  that  part  of  the  charge  was  objectionable. 
All  there  was  unobjectionable  in  the  request  was  in  the  court's  general 
charge,  given  clearly,  explicitly,  in  much  better  terms  than  are  con- 
tained in  the  request.^ 


HICKAM  V.  HICKAM. 

Court  of  Appeals  of  Missouri^  1891. 

[-16  Missouri  Appeal  Reports,  496.] 

Gill,  J.^  At  the  December  term,  1889,  the  plaintiff  presented  to 
the  probate  court  of  Cooper  county,  for  allowance  against  the  estate 
of  Joseph  Hickam,  deceased,  the  following  account : 

"The  Estate  of  Joseph  Hickam,  deceased.  To  Eda  Hicham  (colored),. 

Dr.: 

"To  services  rendered  by  said  Eda  Hickam  for  the  said  Joseph 
Hickam  as  house  and  general  servant  from  the  eighteenth  day  of 
February,  1865,  to  the  twenty-third  day  of  February,  1889,  being 
twenty-four  years  and  five  days,  at  the  rate  of  $5  per  month,  amount- 
ing in  the  aggregate  to  the  sum  of  $1,440.85." 

The  case  was  tried  before  a  jury  in  the  probate  court,  and  judg- 
ment rendered  for  the  plaintiff  for  $785.29,  from  which  the  defendant 
appealed  to  the  circuit  court  of  Cooper  county,  where  a  trial  was  had 
before  a  jury,  resulting  in  a  verdict  for  the  defendant,  whereupon 
the  plaintiff  sued  out  her  writ  of  error,  and  brought  the  case  to  this 
court.  We  make  the  following  brief  statement  of  the  facts  as  set 
out  in  counsel's  brief  upon  which  plaintiff's  demand  is  based : 

Mames  v.  Cillen   (]801)   3  Ind.  App.  472. 

The  principal  case  may  be  taken  as  representing  the  weight  of  authority 
in  matters  of  this  kind.  The  question  is  simply  one  of  fact,  and  the  plain- 
tift  must  establish  his  claim  to  remuneration  just  as  in  any  other  case.  The 
household  relationship,  not  the  mere  relationship  of  parent  and  child,  as 
Mr.  Keener  points  out,  is  the  difficulty  to  be  overcome,  and  in  such  cases 
courts  are  inclined  to  insist  that  the  claim  be  based  upon  a  boim  fide  intent 
to  receive  compensation  at  the  time  the  services  were  performed.  Otherwise 
an  afterthought,  caused,  it  may  be,  by  pique  or  disappointment,  would 
change  the  legal  nature  of  the  act.  See  Keener's  Treatise  on  Quasi-Contracts, 
.'(17  and  note,  in  which  the  cases  are  collected  and  analysed.  And  see  note  on 
this  subject  in  6  Harv.  Law  R.  382.— Ed. 

*A  portion  o)  the  opinion,  relating  to  questions  of  evidence  and  instructions 
given   and    refused,   is    omitted. — Ed. 


CHAP.   I.]  HICKAM   V.    IIICKAM.  345 

Prior  to  the  Civil  War  and  up  to  the  date  of  the  emancipation  of 
slaves  in  Missouri,  the  plaintiff  was  the  property  of  Joseph  Hickam, 
now  deceased,  who  lived  in  Moniteau  county,  Missouri,  from  whence 
he  removed  to  Cooper  county,  where  he  died  in  the  year  1889.  At 
the  time  of  the  abolition  of  slavery  in  Missouri  the  plaintiff  was 
about  twenty-three  years  old.  From  childhood  she  had  been  the  slave 
of  said  Joseph  Hickam;  had  no  education,  and  had  had  very  little 
intercourse  with  anyone  outside  of  the  family  of  her  owner.  She 
claims  (and  there  is  some  evidence  to  sustain  her)  that  during  the 
war  and  until  the  death  of  her  "old  master,"  Joseph  Hickam,  she 
was  not  allowed  to,  and  never  did,  leave  his  premises  except  in  the 
company  of  a  member  of  the  Hickam  family ;  that  she  was  not  allowed 
to  visit  any  of  her  own  race,  and  no  colored  person,  not  even  her  step- 
father, was  allowed  to  talk  to  her  alone ;  fVint-.shp  wps  never  permitted 
to  go  to  church  or  public  gatherings  of  any  kind,  and  lived  in  absolute^ 
ignora"hce  of  thL^~ta^tr"thanHe  negroes  had  been  set  free,  or  that  she_^ 
was  a  free  woman,  until  after  the  death  of  herjnastex.  Joseplr-HickaiiL 
Dunng  the  whole  of  the  time,  from  the  abolition  of  slavery  in  Mis- 
souri until  the  death  of  Joseph  Hickam  (twenty-four  years  and  five 
days),  she  lived  and  served  as  his  slave  in  total  ignorance  of  her 
rights,  and  without  any  remuneration  or  reward  for  her  services, 
except  what  she  had  received  while  she  was  in  fact  a  slave,  to  wit,  her 
food  and  clothing.  The  theory  upon  which  plaintiif's  claim  is  based 
is,  that  if  by  fraud,  deceit  or  duress  she  jwas  kepj^ jn^i^noxance  of  her 
rights^  by  the  said  Joseph  Hickam,  whereby  she  was  induced  to  and 
did  render  him  services^  then  she  is  entitIed^lo_pay--£Qi_the_sajtne, 
althouglTheliiay  not  have  intended  to  pay  her,  and  she  may  not  have 
expected  to  charge  for  such  services. 

I.  It  will  be  seen  by  a  comparison  of  plaintiff's  refused  instruc- 
tion with  the  instruction  given  for  defendant,  that  the  trial  court 
declined  to  adopt  the  theory  that  if  the  negro  girl,  Eda,  was  induced 
by  the  fraudulent  concealment  of  her  rights  by  the  said  Joseph 
Hickam  to  labor  for  his  benefit  without  pay,  that  then  she  ought  to 
recover  the  value  of  such  services;  hut  held  that  the  plaintiff  could  not 
recover,  however  valuable  the  services  may  have  been,  unless  "the 
jury  should  believe  from  the  evidence  that  at  the  time  she  was  ren- 
dering said  services  she  intended  to  charge  Joseph  Hickam  therefor, 
and  that  the  said  Joseph  Hickam  understood  at  the  time  said  services 
Avere  being  rendered  that  she  expected  to  make  said  charge,"  etc. 
In  other  words,  the  jury  was  advised  that,  even  admitting  the 
charge  that  Joseph  Hickam  did  by  his  fraudulent  practices  hold  the 
said  Eda  in  practical  bondage  years  after  the  emancipation,  and  that, 
in  utter  ignorance  that  she  was  free,  the  plaintiff  performed  valuable 
labor  for  said  Joseph  Hickam,  yet  that  there  was  no  implied  obligation 
on  him  to  pay  therefor,  because  she,  the  plaintiff,  at  the  time  ex- 
pected no  reward,  nor  did  Hickam  expect  to  pay  anything  therefor. 


340  HICKAM   V.   HICKAM.  [BOOK   II. 

We  do  not  understand  this  to  be  the  law  in  this  character  of  case. 
An  implied  promise  does  not  always  depend  upon  the  existence  of 
^'^^^git^^^Q^L' w"~f^^Tf-oJ^the--ette-4e-^fiay^"and  the  trbfaeritoIregeiieT'  The 
law  frequently  affixes  a  promise  to  pay  even  contrary  to  actual  inten- 
tion. As  well  expressed  by  an  eminent  author:  "The  law  implies 
from  men's  conduct  and  actions  contracts  and  promises  as  forcible 
and  binding  as  those  made  by  express  words,  and  such  contracts  are 
implied  sometimes  in  furtherance  of  the  intention,  or  presumed  in- 
tention, of  the  parties,  and  sometimes  in  furtherance  of  justice  with- 
out regard  to  the  intention  of  the  parties.  Thus  a  promise  to  pay  for 
services  rendered,  or  for  goods  received,  or  money  obtained,  will  be 
implied  against  the  wrongdoer  who  never  intended  to  pay  or  intended 
deceptively  to  avoid  payment."  3  Add.  on  Cont.  sec.  1399 ;  1  Hilliard 
bn  Contracts,  sec.  20,  p.  65. 

This  same  doctrine  found  practical  application  in  an  early  de- 
cision by  our  supreme  court.  Higgins  v.  Breen,  Adm'r,  9  Mo.  497. 
McNally  left  his  wife  in  a  foreign  country,  came  here  and  solicited 
the  plaintiff,  Rosaline  Higgins,  to  marry  him;  she  consented  and  was 
married  to  him,  trusting  to  McNally's  false  and  fraudulent  repre- 
sentations that  he  was  single.  It  was  only  after  the  death  of  McNally 
that  the  plaintiff  became  informed  of  the  truth.  She  then  sued  the 
estate  for  the  value  of  her  services  as  housekeeper  for  McNally  during 
the  time  she  had  lived  with  him,  and  she  was  allowed  to  recover, 
although,  of  course,  while  performing  the  services  she  in  fact  ex- 
pected no  compensation.  Nor  did  McNally  expect  to  pay  anything. 
He  was  held,  however,  on  an  implied  contract,  regardless  of  the 
intention  of  the  parties.  In  point  see  also.  Negro  Peter  v.  Steel, 
3  Yeates  (Pa.),  250;  Boardman  v.  Ward,  40  Minn.  399;  Wood  on 
Master  &  Servant,  pp.  96,  106,  107,  and  cases  cited.  Many  of  the 
cases  referred  to,  it  is  true,  were  instances  of  compulsion,  where  the 
plaintiff  was  forced  to  labor  for  the  defendant.  However,  I  can  dis- 
cover no  distinction  in  principle,  whether  the  labor  was  secured 
through  duress,  compulsion  or  fraud.  The  reason  and  justice  in 
each  case  is  the  same ;  the  law  is  the  same. 

The  authorities  cited  by  defendant  do  not  militate  against  the 
position  "here  announced.  The  case  of  Callahan  v.  Riggins.  43  Mo. 
App.  130,  is  one  of  the  series  in  the  appellate  courts  of  this  state 
denying  the  right  of  a  near  relative  and  member  of  the  family  to 
compensation  for  labor  done  while  a  member  of  the  family,  unless 
there  was  at  the  time  an  expectation  of  the  one  to  give,  and  the  other 
to  receive,  pay  for  such  services.  It  is  there  held  that  the  ordinary 
presumption  of  an  agreement  to  pay  for  valuable  services  rendered 
does  not  obtain  where  the  parties  occupy  a  family  relation.  These 
cases  are  taken  out  of  the  general  rule,  and  have  no  bearing  on  the 
question  here. 

In  Maltby  v.  Harwood,  12  Barb.  473,  and  other  cases  relied  on  by 


CHAP.    I.]  HICKAM   V.   HICKAM.  347 

defendant's  counsel,  both  parties  were  acting  under  a  mistake.  "They 
alike,"  says  the  court  in  Maltby  v.  Harwood,  "thought  the  plaintiff . 
was  bound  as  an  apprentice."  It  was  held  there  that  no  implied  obliga- 
tion to  pay  arose.  It  is  said  there,  however,  that  a  different  rule 
would  hold  if  the  plaintiff  had  been  compelled  to  perform  the  labor 
for  defendants.  I  take  it  the  court  in  the  Maltby  case  would  have 
held  the  defendant  liable  on  a  showing  that  he  had  secured  the'  services 
of  the  plaintiff  by  falsely  and  knowingly  representing  and  inducing 
the  plaintiff  to  believe  that  he,  the  defendant,  was  legally  entitled  to 
his  labor  thus  performed. 

II.  But  it  is  suggested  by  defendant's  counsel  that  the  ignorance, 
on  account  of  which  plaintiff  seeks  relief,  is  that  of  law  and  not 
of  fact,  and  hence,  under  the  well-known  maxim,  Ignorantia  legis  nem- 
inem  excusat,  she  cannot  complain  of  the  deception  alleged  to  have 
been  practiced  by  Joseph  Hickam.  Generally,  it  is  true,  a  misrepre- 
sentation of  the  law  affords  no  ground  of  redress ;  the  misrepresenta- 
tion should  relate  to  a  question  of  fact.  However,  this  harsh  and 
arbitrary  rule  is  not  without  its  exception.  All  men  are  not  always 
presumed  to  know  the  law.  Misrepresentation  of  the  law  is  some- 
times binding  on  the  party  who  makes  it.  This  is  true  in  trans- 
actions between  parties  occupying  fiduciary  and  confidential  relations. 
"Indeed,"  it  is  said,  "where  one  who  has  had  superior  means  of  in- 
formation professes  a  knowledge  of  the  law,  and  thereby  obtains  an  un- 
conscionable advantage  of  another  who  is  ignorant,  and  has  not  been 
in  a  situation  to  become  informed,  the  injured  party  is  entitled  to 
relief  as  well  as  if  the  misrepresentation  had  been  concerning  matter 
of  fact.  Bigelow  on  Fraud,  488,  and  cases  cited,  Moreland  v.  Atchison, 
19  Tex.  311.  The  right  to  relief  seems  to  be  admitted,  where  "a  party 
should  intentionally  deceive  another  by  misrepresenting  the  law  to  him, 
or,  knowing  him  to  be  ignorant  of  it,  should  thereby  knowingly  take 
advantage  of  his  ignorance  for  the  purpose  of  deceiving  him."  Abbott 
V.  Treat,  78  Me.  12G.  Says  Judge  ISTapton,  in  Faust,  Adm'r  v.  Birner, 
30  Mo.  at  p.  420 :  "There  may  have  been  gross  ignorance  and  imbecil- 
ity on  one  side  and  a  perfect  knowledge  of  the  fact  and  the  law  on  the 
other ;  there  may  have  been  imposition  or  undue  influence ;  there  may 
have  been  circumstances  from  which  the  jury  might  infer  fraud,"  and, 
therefore,  he  concluded  that  the  plaintiff  in  the  action  might,  on  a  now 
trial,  recover. 

Justice  Story  thus  concludes  a  recital  of  exceptions  to  the  above 
rule  that  there  is  no  relief  from  an  ignorance  of  the  law\  He  says : 
"It  is  relaxed  *  *  *  jj^  eases  of  imposition,  misrepresentation, 
undue  influence,  misplaced  confidence  and  surprise."  1  Story's  Eq., 
sec.  137;  also  sec.  120,  et  seq.  Conceding,  now,  for  the  purpose  only 
of  illustrating  our  contention,  that  the  facts  of  this  case  are  as  put 
by  plaintiff's  counsel,  that  this  negro  girl  was  born  and  raised  a  slave, 
ignorant,  unable  to  read,  kept  under  strict  surveillance  by  her  master 


o-iS  TURNER  &  OTIS   i\   WEBSTER.  [BOOK    II. 

during  and  since  the  momentous  year  of  1865,  and,  up  to  his  death 
in  18S9,  guarded  by  watchful  eyes,  kept  within  the  precincts  of  the 
Hickam  home  and  unadvised  of  the  history  of  the  times  and  the 
country,  and  taught  to  believe  that  she  was  still  a  slave  and  was  the 
property  of  Hickam;  that  her  old  master  kept  her  in  darkness  and 
absolute  ignorance  all  these  twenty-four  years  of  the  fact  that  she 
was  free,  what  an  outrage  on  justice  would  it  be  to  answer  her  claim 
for  compensation  for  valuable  services  to  say  to  her:  "You  all  the 
time  knew  the  law  of  the  land,  and  there  is  no  relief  for  you."  No ;  the 
plaintiff's  case,  as  claimed  by  her,  forms  an  exception  to  the  rule, 
and,  if  Joseph  Hickam  was  guilty  of  this  fraudulent  suppression  of 
the  truth  and  this  misrepresentation  to  one  under  his  care  and  control, 
he  cannot  now  be  heard  to  invoke  the  maxim  of  law  above  quoted. 

The  judgment  will  be  reversed,  and  the  cause  remanded  for  a  new 
trial.     All  concur.^ 


TURNER  &  OTIS  v.  WEBSTER. 
Supreme  Court  of  Kansas,  1880. 
.     [24  Kansas,  38.] 

Action  brought  by  Webster  against  Turner  and  another,  partners, 
to  recover  for  services  rendered  the  defendants.  Trial  at  the  January 
term,  1879,  of  the  District  Court,  and  verdict  and  judgment  for 
plaintiff.  The  defendants  bring  the  case  to  this  court.  The  facts  are 
stated  in  the  opinion. 

^Accord:  Negro  Peter  v.  Steel  (1801)  3  Yeates,  250;  Kinney  v.  Cook  (1841) 
4  111.  232.    See  also,  Boardman  v.  Ward  (1889)  40  Minn.  309. 

Contra:  Negro  Franklin  v.  Waters   (1849)    8  Gill,  322. 

Higgins  V.  Breen  (1845)  9  Mo.  497,  cited  in  principal  case,  holds  squarely 
that  a  woman  living  with  man  in  honest  belief  that  she  is  his  wife,  may  waive 
the  tort  and  sue  his  estate  in  assumpsit  for  the  value  of  her  services  during 
the  period  of  cohal)itation.  The  opinion  is  elaborate  and  convincing,  based  as 
it  is  upon  Hambly  v.  Trott  (1776)  Cowp.  371,  ante.  See  also,  Fox  v.  Dawson 
(1820)  8  Mart.  (La.)  94,  in  which  the  recovery  was  permitted. 

Cooper  V.  Cooper  (1888)  147  Mass.  370,  is,  however,  contra,  but  seems 
based  upon  the  alleged  sanctity  of  the  married  relation.  See  also,  Payne's 
Appeal  (1895)  65  Conn.  397,  where,  under  reversed  facts,  the  husband  was 
not  permitted  to  recover  against  the  estate  of  a  woman  whom  he  had  been 
induced  to  man-y  by  her  false  representation  that  she  was  single. 

It  is  universally  admitted,  however,  that  the  wronged  woman  lias  a  cause  of 
action  and  that  she  may  recover  against  the  tort-feasor  during  his  lifetime  by 
an  action  of  deceit,  although  no  action  lies  against  his  estate.  Cooper  v. 
Cooper  (1888)  147  Mass.  370,  and  cases  cited;  Knott  v.  Knott  (1902)  51 
Atl.  R.  15   (N.  J.  Eq.).— Ed. 


CHAP.    I.]  TURNER  &  OTIS   V.   WEIJSTER.  .  349 

The  opinion  of  the  court  was  delivered  by 

Bhewer,  J.  In  an  action  coiuinenced  by  phiintitTs  in  error,  an  at- 
tachment was  issued,  placed  in  the  hands  of  the  sheriff,  and  by  him 
levied  upon  certain  mill  property.  Pending  the  attachment  proceed- 
ings, the JiherifL,_imder  dirpftinn  of  p1ninfifT>L  .in  ■Prraj^_PTnp1n3[Pfj_fle- 
fendant  in  error  to  watch  the  properly;  and  this  nr-iion  was  brought 
by  defendant  in  error,  plaintiff  below,  to  recover  for  such  services. 
That  the  sheriff  was  authoiizedJiy:  plaintiffs.  in.£rror_to_employ_defnnd- 
ant  in  error,  and  that  the  latter  performed  the  services,  are  conceded 
facts..  The  dispute  is  as  to  the  compensation.  Webster  claims  that 
the  contract  price  was  three  dollars  per  day,  and  that  it  was  worth 
that  amount ;  while  Turner  &  Otis  say  that  they  authorized  the  sheriff 
to  contract  for  only  one  dollar  and  a  half  a  day,  and  the  sheriff  says 
that  that  was  all  he  promised  to  pay.  The  misunderstanding  seems  to 
have  arisen  in  this  way:  After  the  attachment,  Turner  &  Otis  re- 
quested the  sheriff'  to  find  some  one  to  guard  the  mill.  Meeting 
Webster,  he  asked  him  what  he  would  undertake  the  job  for.  He 
replied,  one  dollar  and  a  half  a  day,  and  nights  the  same.  The  sheriff 
understood  him  to  say  and  mean,  one  dollar  and  a  half  for  each  day 
of  twenty-four  hours,  while  plaintiff  meant  that  amount  for  a  day  of 
twelve  hours,  and  the  same  for  the  night  time,  or  three  dollars  for 
every  twenty-four  hours.  The  sheriff  reported  the  offer  to  Turner  & 
Otis  as  he  understood  it,  and  they,  after  some  hesitation,  told  him 
to  accept  the  offer  and  employ  Webster.  Without  further  words  as  to 
the  price,  the  sheriff  gave  the  key  of  the  mill  to  Webster  and  told 
him  to  go  ahead.  Kow  the  contention  of  plaintiffs  in  error  is,  that  the 
case  turns  on  the  law  of  agency ;  that  they  never  personally  employed 
Webster;  that  the  sheriff  was  only  a  special  agent  with  limited 
powers,  only  authorized  to  bind  them  by  a  contract  to  the  amount  of 
one  dollar  and  fifty  cents  per  day  of  twenty-four  hours ;  that  Webster 
is  chargeable  with  notice  of  the  extent  of  the  sheriff's  authority,  and 
can  enforce  the  contract  as  against  the  plaintiffs  in  error  to  the  ex- 
tent only  of  such  authority.  For  any  contract  beyond  that  amount, 
the  special  agent  binds  himself  alone,  and  not  the  principal.  On  the 
other  hand,  the  defendant  in  error  contends  that  where  services  are 
contracted  for  and  rendered,  and  no  price  sti]mlated,  the  law  awards 
reasonable  compensation  therefor,  and  that  where  there  is  a  misunder- 
standing as  to  the  price,  the  one  party  understanding  it  at  one  sum 
and  the  other  at  a  different,  there  is  no  stipulation  as  to  the  price, 
and  that  it  makes  no  difference  whether  the  contract  be  made  through 
an  agent  or  with  the  principal  directly.  In  the  case  at  bar,  he  contends 
that  it  is  immaterial  that  the  conversation  and  misunderstanding 
were  with  the  sheriff,  the  agent,  and  that  the  rule  is  just  the  same  as 
though  the  talk  and  misunderstanding  had  been  with  Turner  »S:  Otis 
personally. 

We  think  the  case  rests  upon  the  propositions  advanced  by  the  de- 


350  TURNER  &  OTIS  T.   WEBSTER.  [BOOK    II. 

fondant  in  error.  It  will  not  be  questioned,  that,  where  the  minds 
of  two  contracting  parties  do  not  come  together  upon  the  matter  of 
price  or  compensation,  but  do  upon  all  other  matters  of  the  contract, 
and  the  contract  is  thereupon  performed,  the  law  awards  a  reasonable 
price  or  compensation.  Thus,  where  shingles  were  sold  and  delivered 
at  $3.25,  but  there  was  a  dispute  as  to  whether  the  $3.25  was  for  a 
bunch  or  for  a  thousand,  it  was  ruled,  that  unless  both  parties  had 
understanding!}'  assented  to  one  of  those  views,  there  was  no  special 
contract  as  to  price.  Greene  v.  Bateman,  2  Woodb.  &  M.  239.  It  is 
said  by  Parsons,  in  his  work  on  Contracts,  vol.  1,  p.  389,  that  "there 
is  no  contract  unless  the  parties  thereto  assent ;  and  they  must  assent 
to  the  same  thing,  in  the  same  sense."  Here,  Webster  never  assented 
to  a  contract  to  work  for  $1.50  a  day.  He  agreed  to  do  a  certain 
work,  and  did  it ;  but  his  understanding  was,  that  he  was  to  receive 
$3.00  per  day.  Turner  &  Otis  employed  him  to  do  that  work,  and 
knew  that  he  did  it;  but  their  understanding  was,  that  they  were  to 
pay  but  $1.50  a  day.  In  other  words,  the  minds  of  the  parties  met 
upon  everything  but  the  compensation.  As  to  that,  there  was  no 
aggregatio  mentium.  What,  then,  should  result?  Should  he  re- 
ceive nothing,  because  there  was  no  mutual  assent  to  the  compensa- 
tion? That  were  manifest  injustice.  Should  his  understanding  bind 
both  parties  ?  That  were  a  wrong  to  them.  Should  theirs  control  ? 
That  were  an  equal  wrong  to  him.  The  law,  discarding  both,  says 
a  reasonable  compensation  must  be  paid.  So  that  if  the  negotiation 
had  been  between  the  parties  directly,  and  this  misunderstanding 
had  arisen,  the  rule  of  reasonable  compensation  would  unquestionabl}' 
have  obtained.  Now,  how  does  the  law  of  agency  interfere?  The 
proposition  of  law  advanced  by  counsel  for  plaintiff  in  error,  that  a 
special  agent  binds  his  principal  to  the  extent  only  of  the  authority 
given,  and  himself  by  any  promise  in  excess,  is  clear.  But  the  agent 
made  no  promise  in  excess  of  his  authority.  He  promised  that  which 
he  was  authorized  to  promise.  Because  the  other  party  misunderstood 
the  extent  of  the  promise,  is  surely  no  reason  for  holding  the  agent 
bound  for  more  than  he  did  in  fact  promise.  The  agent  has  rights  as 
well  as  the  principal.  The  work  is  not  done  for  his  benefit.  He  has 
discharged  his  agency  in  good  faith,  and  to  the  best  of  his  ability. 
Why  should  he  be  mulcted  in  any  sum  on  account  of  the  misunder- 
standing of  the  party  with  whom  he  contracted?  If  compensation 
were  given  on  the  basis  of  his  promise,  then,  if  his  promise  was  in 
excess  of  his  authority,  he  should  be  responsible  for  the  excess ;  but 
where  the  promise  is  ignored,  and  compensation  given  on  the  basis 
of  value  alone,  he  should  not  be  charged  with  the  excess  of  such  value 
above  his  authority.  An  agent  is  responsible  for  good  faith.  That  i^ 
not  questioned.  He  does  not  insure,  either  to  his  principal  or  the 
opposite  party.  Acting  in  good  faith  and  to  the  best  of  his  ability, 
we  can  see  no  reason  for  making  him  responsible  for  any  mere  mis- 


CHAP.    I.]  TURNER  &  OTIS  V.  WEBSTER.  351 

understanding.  Justice  is  done  to  all  parties  by  ignoring  any  promise 
or  understanding  as  to  compensation,  and  giving  to  the  laborer 
reasonable  compensation  for  the  work  done,  and  requiring  the  party 
receiving  the  benefit  of  such  work  to  pay  a  just  and  reasonable  price 
therefor. 

The  case  was  submitted  to  the  jury  upon  this  basis,  and  while  the 
instruction  asked  by  plaintiffs  in  error  and  refused  was  unquestionably 
good  law  in  the  abstract,  and  while  some  criticism  might  fairly  be 
placed  upon  one  of  the  instructions  given,  and  upon  the  answers  of 
the  jury  to  two  special  questions,  we  think  the  main  question  was  fairly 
presented,  and  that  no  error  appears  justifying  a  reversal  of  the  judg- 
ment, and  it  will  be  affirmed.^ 

All  the  Justices  concurring. 

'See  also,  Tucker  v.  Preston  (1887)  60  Vt.  473.— Ed. 


CHAPTEE  II. 

Where  a  Contractural  Eelation  Exists^  but  one  Party  has 
Failed  to  Eeceive  an  Equivalent  of  his  Outlay, 


SECTION  I. 
The  Failure  is  Due  to  a  Mistake, 


1,  mistake  may  be  as  to  law  or  fact. 


BONNEL  V.  FOUKE,  ALDEEMAN  OF  LONDON". 

Michaelmas  Term^  Upper  Bench,  1657, 
[2  Siderfin,  4.] 

The  plaintiff  being  one  of  the  colemeeters  of  London,  for  which 
he  was  to'pay  £80  per  annum,  the  special  matter  was  found  to  be  that 
by  divers  charters  the  Kings  of  England  have  granted  and  confirmed 
to  the  Mayor  and  Aldermen  of  London,  the  measuring  of  cloths,  as 
well  woollen  as  linen,  silks,  etc.,  and  the  weighing  and  measuring  of 
fruit,  fish,  coals,  etc.,  both  in  the  port  of  London  and  on  the  Thames 
from  Stanesbridge  to  London  bridge,  and  thence  to  Medway  near  the 
sea,  as  also  upon  the  river  Medway,  of  all  such  goods  landed  upon  the 
banks  within  the  said  space  before  limited;  and  it  was  found  that  in 
ancient  times  there  were  but  four  colemeeters,  and  afterwards  six 
were  appointed,  and  later  eight.  And  in  the  third  year  of  King  James 
it  was  enacted  by  the  Common  Council  of  London  (which  has  as  much 
power  within  the  walls  of  London  as  an  act  of  Parliament  without) 
that  there  should  be  ten  colemeeters,  eight  of  whom  should  pay  their 
rent  to  the  Lord  Mayor  for  the  time  being,  for  the  maintenance  of 
his  honoral)le  liouse,  while  the  other  two  should  pay  their  rent  to  the 
Chamberlain  of  London.  The  plaintiff  was  one  of  these  two.  About 
the  year  lGo2  (as  I  remember),  when  the*  defendant  was  Mayor,  he 
demanded  of  the  plaintiff'  the  said  rent,  who  paid  it  quarterly  and 


CHAI'.    II. J  BIZE  V.  DICKASOX  AXD  ANOTHER.  353 

holds  several  receipts  of  this  tenor:  Received  of  J.  B.,  one  of  the  cole- 
meeters  of  the  city  of  London,  the  sum  of  £20  for  his  rent,  by  me, 
J.  F.,  Lord  Mayor,  etc.  Afterwards  the  rent  was  demanded  of  the 
said  defendant  [plaintiff?]  by  the  Chamberlain  of  the  city,  and  he 
paid  the  said  rent  to  the  Chamberlain,  and  therefore  brought  assump- 
sit, namely,  iiulchilalus  assumpsit,  against  the  defendant  Fouke.  It 
was  adjudged  that  the  action  well  lies. 

As  if  one  comes  to  me  and  says :  Pay  me  my  rent,  I  am  your  land- 
lord ;  and  1  answer :  Give  me  your  receipt  and  yau  shall  have  it,  and  so 
I  pay,  and  afterwards  another  who  has  right  comes  and  demands  the 
rent,  and  I  pay  him,  I  may  have  indebitatus  assumpsit  against  him 
who  gave  me  the  first  receipt. 

And  if  I  pay  money  in  satisfaction  of  a  duty,  and  he  to  whom  it  is 
paid  has  no  title  to  receive  it,  and  so  the  duty  is  not  satisfied,  he  to 
whom  the  money  was  paid  is  thereby  indebted  to  me.  and  therefore  I 
may  maintain  an  action  against  him  as  well  as  against  one  who  has  no 
title  to  demand  rent.^ 


BIZE  V.  DICKASON  AND  ANOTHEE,  ASSIGNEES  OF  BART- 

ENSHLAG. 

King's  Bench,  1786. 

[1  Term  Reports,  285.] 

This  was  an  action  for  money  had  and  received  by  the  defendants, 
as  assignees  of  the  bankrupt,  for  the  plaintiff's  use.  Plea,  the  general 
issue. 

The  cause  came  on  to  be  tried  at  the  sittings  after  Easter 
Term,  1786,  at  Guildhall,  London,  before  Buller,  Justice,  when 
the  jury  found  a  verdict  for  the  plaintiff;  damages  £661  9s.  lOd. 
and  costs  406\,  subject  to  the  opinion  of  the  Court  on  the  following 
case : — 

That  the  bankrupt.  John  Rodolph  Bartenshlag,  being  an  under- 
writer, subscribe  policies  filled  up  with  the  plaintiff's  name  for  his 
foreign  correspondents,  who  were  unknown  to  the  bankrupt. 

That  losses  happened  on  such  policies  to  the  amount  of  £655  9s.  lid. 

'"By  means  of  the  fiction  of  a  promise  implied  in  law,  indebitatus  .Assump- 
sit became  concurrent  with  Debt  and  thus  was  established  the  fam.iliar  acticm 
of  Assumpsit  for  monej'  had  and  received  to  recover  money  paid  to  the  defend- 
ant by  mistake.  Bonnel  r.  Fouke  (1G57)  2  Sid.  4.  is.  perhaps,  the  first  action 
of  the  kind."     Ames'  History  of  Assumpsit,  2  Ilarv.  L.  Rev.  GG. — Ed. 


354  BIZE    r.    DICKASON    AND    ANOTHER.  [BOOK    II. 

before  the  bankruptcy  of  Bartenshlag,  and  were  adjusted  by  him. 
That  a  loss  on  another  policy  to  the  amount  of  £6  Os.  3d.  happened 
before  the  said  bankruptcy,  but  was  not  adjusted  till  after  such  bank- 
ruptcy 

That  the  plaintiff  paid  the  amount  of  the  losses  to  his  foreign  cor- 
respondents after  such  bankruptcy. 

That  the  plaintiff  had  a  commission  del  credere  from  his  corre- 
spondents, was  made  debtor  by  the  bankrupt  for  the  premiums,  and 
always  retained  the  policies  in  his  hands. 

That  a  dividend  of  10s.  in  the  pound  was  declared  under  the  said 
commission  on  the  15th  of  June,  1782. 

That  at  the  time  of  the  bankruptcy  there  was  due  from  the  plaintiff' 
to  the  bankrupt  the  sum  of  £1356  Os.  3d.  And  there  was  due  from  the 
bankrupt  for  the  above  losses  £661  9s.  lOd. 

That  on  the  15th  of  March,  1783,  the  plaintiff  paid  to  the  de- 
fendants the  sum  of  £750,  and  on  the  17th  of  November,  1785,  the 
further  sum  of  £606  Os.  3d.,  amounting  to  £1356  Os.  3d. 

And  on  the  18th  November,  1785,  the  plaintiff  proved  the  said  sum 
of  £661  9s.  lOfZ.  under  the  said  commission. 

That  the  plaintiff  never  received  any  dividend  under  the  commis- 
sion for  or  on  account  of  the  said  losses. 

That  a  final  dividend  of  the  effect  of  the  said  bankrupt  was  de- 
clared by  the  said  commissioners  on  the  24th  day  of  January,  1786. 

That  on  the  1st  of  February,  1786,  previous  to  such  dividend  being 
paid,  the  plaintiff  caused  a  notice  to  be  served  on  the  defendants, 
purporting  that  he  had  paid  them  the  said  sum  of  £1356  Os.  od.  under 
a  mistaken  idea,  without  deducting  therefrom  the  said  £661  9s.  lOd. 
for  the  aforesaid  losses  on  the  said  several  policies  subscribed  by  the 
bankrupt,  for  whom  he  was  del  credere  to  the  said  foreign  correspon- 
dents, and  had  paid  such  losses  accordingly ;  and  cautioning  thorn 
against  making  any  dividend  until  he  was  paid  the  said  sum  of  £661 
9s.  lOd. 

That  there  is  now  in  the  hands  of  the  said  defendants  effects 
of  the  bankrupt  more  than  sufficient  to  satisfy  the  demand  of  the- 
plaintiff. 

The  question  for  the  opinion  of  the  Court  is.  Whether  the  plaintiff' 
is  entitled  to  recover  in  this  action?  If  the  plaintiff  is  entitled  to 
recover  in  this  action  the  verdict  to  stand.  But  if  the  Court  shall  1)e 
of  opinion  that  the  plaintiff  is  not  entitled  to  recover,  then  a  verdict 
to  be  entered  for  the  defendants. 

Smith  was  to  have  argued  for  the  plaintiff,  but  Mingny  for  the  de- 
fendants declined  arguing  the  case. 

The  Court  being  of  opinion  that  it  came  within  the  principle  of  the 
case  of  Grove  v.  Dubois,  1  T.  R.  112;  and — 

Lord  Mansfield,  Ch.  J.,  said.  The  rule  had  always  been,  that  if  a 
man  has  actually  paid  what  the  law  would  not  have  compelled  him  to- 


CHAP.    II.]  BILBIE   V.    LUMLEY   AND   OTHERS.  355 

pay,  but  what  in  equity  and  conscience  he  ought,  he  cannot  recover  it 
back  again  in  an  action  for  money  had  and  received.  So  where  a 
man  has  paid  a  debt,  which  would  otherwise  have  been  barred  by  the 
statute  of  limitations ;  or  a  debt  contracted  during  his  infancy,  which 
in  justice  he  ought  to  discharge,  thougli  the  law  would  not  have  com- 
pelled the  payment,  yet  the  money  being  paid,  it  will  not  oblige  the 
payee  to  refund  it.  But  where  money  is  paid  under  a  mistake,  which 
there  was  no  ground  to  claim  in  conscience,  the  party  may  recover  it 
back  again  by  this  kind  of  action. 

Judgment  for  the  plamtiff.^ 


BILBIE  V.  LUMLEY  AND  OTHERS. 

King's  Bench,  1803. 

[2  East,  469.] 

This  was  an  action  for  money  had  and  received,  and  upon  other 
common  counts,  which  was  brought  by  an  underwriter  upon  a  policy 
of  insurance,  in  order  to  recover  back  £100  which  he  had  paid  upon 
the  policy  as  for  a  loss  by  capture  to  the  defendants,  the  assured. 
The  ground  on  which  the  action  was  endeavored  to  be  sustained  was, 
that  the  money  was  paid  under  a  mistake,  the  defendants  not  having 
at  the  time  of  insurance  effected,  disclosed  to  the  underwriter  (the 
present  plaintiff)  a  material  letter  which  had  l»een  before  received 
by  them,  relating  to  the  time  of  sailing  of  the  ship  insured.  It  was 
not  now  denied  that  the  letter  was  material  to  be  disclosed ;  but  the 
defence  rested  on  now  and  at  the  trial  was,  that  before  the  loss  on 
the  policy  was  adjusted,  and  the  money  paid  by  the  present  plaintiff, 
all  the  papers  had  been  laid  before  the  underwi-iters,  and  amongst 
others  the  letter  in  question;  and  therefore  it  was  contended  at  the 
trial  before  Rooke,  J.,  at  York,  that  the  money  having  been  paid 
with  full  knowledge,  or  with  full  means  of  knowledge  of  all  the  circum- 

^On  the  question  of  bankruptcj-  involved,  see  Barber  v.  Pott  (18.59)  4  H.  tfc 
N.  75fl.  On  the  question  of  mistake,  see  an  exhaustive  and  learned  note  in 
15  American  Reports,  171-184,  Avhere  it  is  said: 

"Finally  we  repeat  that  we  believe  the  true  rule  to  be,  sanctioned  alike  by 
reason  and  authority,  that  laid  down  by  Lord  Mansfield  in  Bize  v.  Dickason 
(1786)  1  T.  R.  285,  that  'if  a  man  has  actually  paid  what  the  law  would  not 
have  compelled  him  to  pay,  but  what  in  equity  and  conscience  he  oujiht.  he 
cannot  recover  it  back;  but  where  monej'  is  paid  under  a  mistake,  which  there 
was  no  ground  to  claim  in  conscience,  the  party  may  recover  back.'" — Ed. 


356  BILBIE    I".    LUMLEY  AND   OTHERS.  [BOOK    II. 

stances,  could  not  now  be  recovered  back  again.  On  the  other  hand, 
it  was  insisted  that  it  was  sufficient  to  sustain  the  action  that  the 
money  had  been  paid  under  a  mistake  of  the  law;  the  plaintiff  not 
being  apprized  at  the  time  of  the  payment  that  the  concealment  of 
the  particular  circumstance  disclosed  in  the  letter  kept  back,  was  a 
defence  to  any  action  which  might  have  been  brought  on  the  policy; 
and  the  learned  judge  being  of  that  opinion,  the  plaintiff  obtained 
a  verdict. 

A  rule  nisi  was  granted  in  the  last  term  for  setting  aside  the  verdict 
and  having  a  new  trial,  which  was  to  have  been  supported  now  by 
Parh  for  the  defendants,  and  opposed  by  Wood  for  the  plaintiff.  But 
after  the  report  was  read,  and  the  fact  clearly  ascertained  that  the 
material  letter  in  question  had  been  submitted  to  the  examination  of 
the  underwriters  before  the  adjustment, — 

Lord  Ellenborough^  C.  J.,  asked  the  plaintiff's  counsel  whether  he 
could  state  any  case  where,  if  a  party  paid  money  to  another  volun- 
tarily with  a  full  knowledge  of  all  the  facts  of  the  case,  he  could 
recover  it  back  again  on  account  of  his  ignorance  of  the  law?  [Xo 
answer  being  given,  his  Lordship  continued :]  The  case  of  Chatfield  v. 
Paxton^  is  the  only  one  I  ever  heard  of,  where  Lord  Kenyon  at  nisi 
prius  intimated  something  of  that  sort.^  But  when  it  was  afterwards 
brought  before  this  Court,  on  a  motion  for  a  new  trial,  there  were 
some  other  circumstances  of  fact  relied  on;  and  it  was  so  doubtful 
at  last  on  what  precise  ground  the  case  turned,  that  it  was  not  reported. 
Every  man  must  be  taken  to  be  cognizant  of  the  law;  otherwise  there 
is  no  saying  to  what  extent  the  excuse  of  ignorance  might  not  be 
carried.     It  would  be  urged  in  almost  every  case.     In  Lowrie   v. 

'Chatfield  v.  Paxton  was  decided  in  1799.  The  elaborate  statement  of  this 
case  printed  as  a  footnote  in  the  original  report  of  Bilbie  v.  Liimlie,  is  omitted 
inasmuch  as  the  facts  are  sufficiently  given  in  the  opinion  of  Gibbs,  C.  J., 
in  Brisbane  v.  Dacres   (1813)   5  Taunt.  143,  15.5,  post.—Ea. 

-''Experienced  advocate"  and  "learned"  judge  were  alike  unaware,  it 
would  seem,  that  there  were  not  a  few  such  cases  in  the  books  in  which  no 
distinction  was  made  between  mistakes  of  law  and  fact.  Hewer  v.  Bartholo- 
mew (1598)  Cro.  Eliz.  614  (mistake  of  law)  ;  Bonnel  v.  Fouke  (1G57)  2  Sid.  4, 
ante  (mistake  of  fact)  ;  Farmer  v.  Arundel  (1772)  2  W.  Black.  824,  post 
(mistake  of  law)  ;  Bize  v.  Dickason  (1786)   1  T.  R.  285   (mistake  of  law). 

Equity  likewise  failed  to  recognize  any  distinction  between  mistakes  of  law 
and  fact  before  1802.  Turner  v.  Turner  (16S0)  2  Rep.  Ch.  *154  (mistake 
of  law)  ;  Lansdowne  v.  Lansdowne  (1730)  2  J.  &  W.  205,  S.  C.  Moseley,  364 
(mistake  of  law)  ;  Bingham  v.  Bingham   (1748)    1  Ves.  126   (mistake  of  law). 

In  Lansdowne  v.  ]>ansdowne,  supra,  as  reported  by  Moseley,  364,  365, 
Lord  Chancellor  King  is  reported  to  have  said,  and  rightly,  "That  maxim  of 
law,  I gnoraniia  juris  non  excusat,  was  in  regard  to  the  public,  that  ignorance 
cannot  be  pleaded  in  excuse  of  crimes,  but  did  not  hold  in  civil  cases."  And 
see  the  valuable  discussion  of  this  maxim  in  Keener's  masterly  Treatise  on 
Quasi-Contracts,  87  et  seq. — Ed. 


CIIAr.    II.]  BILBIE   V.    LUMLEY   AND   OTHERS.  357 

Bourdieu,  1  Doi;gl.  467,  money  paid  under  a  mere  mistake  of  the 
law  was  endeavored  to  be  recovered  back;  and  there  Buller,  J., 
observed  that  ignorantia  juris  non  excusat,  kc} 

Rule  ahsolute.- 

'A  reference  to  the  report  of  the  case  will  show  that  the  opinion  of 
Buller,  J.,  in  Lowry  v.  Bourdieu  (1780)  1  Dougl.  468,  471,  was  purely  obiter. 
The  transaction  was  made  illegal  by  Statute  (19  Geo.  2,  c.  37)  ;  the  contract 
was  executed  not  executory,  and  both  parties  stood  in  pari  delicto.  Ignorance 
of  the  law  in  such  a  case  was  irrelevant  in  a  civil,  although  it  would  have  been 
material  in  a  criminal  proceetling.  It  was  likewise  a  concurring  opinion,  not  one 
in  which  he  delivered  the  opinion  of  the  court.  If  not  obiter,  it  was  clearlj'  dis- 
credited, if  not  retracted  in  Bize  r.  Dickason.  ante,  originally  tried  before 
Buller  in  1786,  and  inconsistent  with  the  unaminous  opinion  of  the  Court  of 
King's  Bench  delivered  by  Chief  Justice  Mansfield,  of  which  court  Buller  was 
then  an  honored  member. — Ed. 

^Lord  Ellexborough  seems  to  have  forgotten  his  distinction  between  law 
and  fact,  for  in  Perrott  v.  Perrott  (1811)  14  East,  423,  decided  some  nine  years 
later,  he  saj's  (pp.  439,  440)  : 

"Mrs.  Territt  mistook  either  the  contents  of  her  will,  which  would  be  a 
mistake  in  fact;  or  its  legal  operation,  which  would  be  a  mistake  in  law; 
and  in  either  case  we  think  the  mistake  annulled  the  cancellation.  Onions  v. 
Tyrer,  1  P.  Wms.  345,  and  2  Vern.  742,  is  a  strong  authority  that  a  mistake 
in  point  of  law  may  destroy  the  effect  of  the  cancellation.  And  when  once  it 
is  established,  as  it  clearly  is,  that  a  mistake  in  point  of  fact  may  also 
destroy  it,  it  seems  difficult  upon  principle  to  say  that  a  mistake  in  point  of 
law,  clearly  evidenced  by  what  occurs  at  the  time  of  cancelling,  should  not 
have  the  same  operation." 

From  this  latter  case  it  seems  morally  certain  that  had  Bilbie  v.  Lumley, 
supra,  been  argued  and  the  authorities  cited.  Lord  Ellenborough  would  not 
have  delivered  his  hasty  and  ill-considered  opinion  in  the  earlier  case. 

In  Elting  v.  Scott  (1807)  2  John.  157,  165,  Kent,  C.  J.,  referring  to  the 
question  of  mistake  of  law,  said:  "This  question  has  been  very  ably  discussed, 
and  different  opinions  formed  upon  it,  by  the  civilians;  but  it  is  considered  as 
settled  in  England  by  the  late  case  of  Bilbie  v.  Lumley;  and  that  decision 
seems  to  be  in  conformity  with  the  doctrine  anciently  taught  in  the  Doctor 
and  Student    (pp.  79,  147,  152,  251)." 

In  a  MS.  note  to  this  case  Mr.  Ames  says:  "Was  not  the  case  rightly 
decided  independently  of  this  rule?  Defendant  acted  in  good  faith.  The 
non-disclosure  seems  not  to  have  had  any  bearing  on  the  loss  that  actually 
occurred.  At  least  the  exemption  of  plaintiff  from  liability  on  the  policy  would 
have  operated  somewhat  harshly  as  between  these  parties,  the  defence  being 
allowed  for  the  sake  of  the  benefit  of  the  general  rule  requiring  full  disclosure. 
That  is,  as  between  these  parties  the  defence  was  rather  technical  than  just 
and.  therefore,  plaintiff  having  paid  could  not  equitably  recover  back  the  money 
paid."— Ed. 


358  SIR  CHARLES  BRISBANE  V.   DACRES.  [bOOK   II. 


SIE  CHARLES  BRISBANE,  KNT.  v.  DACRES,  WIDOW, 
EXECUTRIX  OF  ADMIRAL  DACRES. 

CoMMON^  Pleas,  1813. 

[5  Taunton,  144.] 

This  was  an  action  of  assumpsit  for  money  had  and  received,  to 
which  the  defendant  jjleaded  the  general  issue,  and  at  the  trial  of  the 
cause  before  Mansfield,  C.  J.,  at  the  first  sittings  within  Hilary 
Term,  1813,  a  verdict  was  found  for  the  defendant,  subject  to  the 
opinion  of  the  court  on  the  following  case.^ 

It  appeared  that  plaintiff  was  in  1808  a  captain  in  navy  attached 
to  the  Jamaica  squadron  under  the  command  of  Admiral  Dacres,  the 
defendant's  testator;  that  the  plaintiff  conveyed  in  his  ship,  the 
Arethusa,  some  $700,000  public  money  from  the  West  Indies  to 
England,  for  which  service  the  government  allowed  him  the  sum  of 
£850;  that  he  likewise  carried  $1,500,000  belonging  to  private  owners, 
and  received  as  freight  therefor  the  sum  of  £7438  18s.  5d. ;  that^the 
plaintiff'  thereupon  paid  a  portion  of  the  two  sums  so  received, by  Jiim, 
namely^£25i)0  (one-third  of  the  sum  of  £7438  18s.  5d.  and  £20  7s.  3d. 
on  account  of  the  allowance  of  £850)  in  accordance  with  a  former 
custom  of  the  navy,  which  had  in  fact  ceased  to  be  legally_Miiding 
iriTTSOI^  QnTearning  this  fact  the  plaintiff  brought  assumpsit  for 
£5^500  as  money  paid  under  mistake.^ 

On  this  day  the  judges  of  the  court  delivered  their  opinions  seriatim. 

GiBBs,  J.,  read  the  warrant.  I  read  this  particularly,  because  it  has 
been  contended  that  the  terms  of  the  warrant  give  the  reward  to  the 
captains  exclusively.  I  do  not  know  that  it  is  necessary  for  me  to 
state  the  correspondence;  the  vSum  of  it  is  this,  that  the  Lords  of 
the  Treasury  proposed  to  the  Lords  of  the  Admiralty  that  a  certain 
sum  should  be  paid  to  the  commanders  of  ships  of  war  which  should 
carry  dollars ;  the  Admiralty  fell  into  this,  and  agreed  that  an  allow- 
ance should  be  made  to  the  commanders  of  such  ships  as  shall  carry 
treasure ;  the  purpose  of  setting  out  these  letters  is,  to  show  that 
the  terms  of  them  apply  only  to  the  captains  commanding  these  ships, 
without  any  reference  to  the  admirals.  The  case  then  states  that 
the  payment  was  made  on  the  behalf  and  account  and  with  the  sanc- 
tion of  the  plaintiff,  but  under  an  idea  that  he  was  bound  to  pay  it 
under  the  practice.  With  respect  to  the  freight  of  private  dollars, 
we  are  all  agreed;  and  as  Captain  Brisl)ane  had  no  right  to  carry 
those  dollars  at  all,  and  stipulated  for  and  received  a  freight  to  which 

*A  short  statement  is  substituted  for  that  of  the  orij^jinal  report. — Ed. 

^Arguments  of  counsel,  in  which  tlie  later  opinion  of  Lord  Em.enborougii  in 
Perrott  v.  Perrott  (1811)  14  East,  440,  was  not  brought  to  the  attention  of  tlie 
court,  omitted. — Ed. 


CHAP.    II.]  SIR   CHARLES    BRISBANE   V.    DACRES.  359 

lie  had  no  right,  and  afterwards,  in  pursuance  of  an  understanding 
with  Admiral  Dacres,  imparted  a  part  to  him  in  manner  agreed  on; 
we  are  all  of  opinion,  that  this  carrying  of  the  dollars_was  an  illegal 
transaction,  that  tlie  whole  wliickiolLowed  was  tainted,  with  the  sMne 
illegalit}',  and  that  the  money  paid  cannot  be  recovered  at  all,  inas-_ 
milclT  as  the  captain  could  not  lawfully  employ  the  ship  and  crew, 
which  ought  to  be  employed  in  the  service  of  his  majesty,  in  carrying 
bullion  for  individu^  I  think  as  to  the  £20,  he  cannot  recover  back 
ttro-rmt'^ttrinrofThat.  We  must  take  this  payment  to  have  been  made 
under  a  tlemand  of  right,  and  I  think  that  where  a  man  demands 
money  of  another  as  a  matter  of  right,  and  that  other,  with  a  full 
knowledge  of  the  facts  upon  which  the  demand  is  founded,  has  paid 
a  sum,  he  never  can  recover  back  the  sum  he  has  so  voluntarily  paid. 
It  may  be,  that  upon  a  further  view  he  may  form  a  different  opinion 
of  the  law,  and  it  may  be,  his  subsequent  opinion  may  be  the  correct 
one.  If  we  were  to  hold  otherwise,  I  think  many  inconveniences  may 
arise.  There  are  many  doul)tful  questions  of  law:  when  they  arise, 
the  defendant  has  an  option  either  to  litigate  the  question,  or  to  sub- 
mit to  the  demand  and  pay  the  money.  I  think,  that  by  submitting  to 
the  demand,  he  that  pays  the  money  gives  it  to  the  person  to  whom 
he  pays  it,  and  makes  it  his,  and  closes  the  transaction  between  them. 
He  who  receives  it  has  a  right  to  consider  it  as  his  without  dispute: 
he  spends  it  in  confidence  that  it  is  his;  and  it  would  be  most  mis- 
chievous and  unjust,  if  he  who  has  acquiesced  in  the  right  by  such 
voluntary  payment  should  be  at  liberty,  at  any  time  within  the  statute 
of  limitations,  to  rip  up  the  matter,  and  recover  back  the  money.  He^ 
who  received  it  is  not  in  the  same  condition;  he  has  spent  it  in  the| 
confidence  it  was  his,  and  |)erhaps  has  no  means  of  repayment.  I  am ' 
aware  cases  were  cited  at  the  bar,  in  which  were  dicta  that  sums  paid 
under  a  mistake  of  the  law  might  Le  recovered  back,  though  paid  with 
a  knowledge  of  the  facts ;  but  there  are  none  of  these  cases  which  may 
not  be  supported  on  a  much  sounder  ground.  In  the  case  of  Farmer  v. 
Arundel,  2  Bl.  E.  825,  De  Grey,  C.  J.,  indeed  says:  "Wlien  money  is 
paid  by  one  man  to  another  on  a  mistake  either  of  fact  or  of  law, 
or  by  deceit,  this  action  (of  money  had  and  received)  will  certainly 
lie."  Now  the  case  did  not  call  for  this  proposition  so  generally 
expressed;  and  I  do  think,  that  doctrine,  laid  down  so  very  widely 
and  generally,  where  it  is  not  called  for  by  the  circumstances  of  the 
case,  is  but  little  to  be  attended  to;  at  least  it  is  not  entitled  to  the 
same  weight  in  a  case  where  the  attention  of  the  court  is  not  called 
to  a  distinction,  as  it  is  in  a  case  where  it  is  called  to  the  distinction. 
Now  in  the  very  next  case  cited,  Lowry  v.  Bourdieu,  Doug.  471, 
which  was  so  early  as  21  G.  3,  the  distinction  is  taken.  After  the 
other  judges,  Buller,  J.,  says:  "I  am  clear  that  the  plaintiff  ought 
not  to  recover,  for  there  is  no  fraud  on  the  part  of  the  underwriters; 
and  in  a  case  where  there  is  no  mistake  of  fact,  or  ignorance  of  fact, 


5J 


V 


360  SIR   CHARLES  BRISBANE  V.   DACRES.  [BOOK    II. 

the  money  cannot  be  recovered  back,  for  the  rule  applies,  that 
ignorantia  legis  non  excusat."  This  distinction  was  thus  pointedly 
stated  in  the  presence  of  Lord  Mansfield,  who  heard  it,  and  whose 
attention  must  be  called  to  it;  and  he  at  the  end  of  the  case  guards 
the  world  against  the  conclusion  that  in  no  case  can  money  paid  on 
an  illegal  transaction  be  recovered  back;  for  in  case  of  extortion,  he 
saj^s,  it  may.  I  mention  this  to  show,  that  although  Lord  Mansfield 
spoke  immediately  after  Buller,  J.,  and  must  have  heard  and  noticed 
his  doctrine,  he  expresses  no  dissatisfaction  with  it.  The  next  case 
is  Bize  v.  Dickason,  1  T.  E.  285,  an  action  brought  by  an  insurance- 
broker  to  recover  back  from  the  assignees  of  a  bankrupt  so  much  of  a 
sum  of  money  which  the  plaintiff  had  paid  to  the  assignees  for  a 
debt  due  to  the  bankrupt,  as  the  plaintiff  might  have  deducted  by  way 
of  set-off  by  reason  of  losses  which  had  accrued  before  the  bankruptcy 
upon  policies  effected  by  the  plaintiff  and  subscribed  by  the  bank- 
rupt. It  is  most  certain  that  the  only  question  brought  under  the 
consideration  of  the  court  in  that  case  was,  whether  the  right  of  the 
broker,  who  had  a  del  credere  commission  to  make  the  deduction, 
ranged  itself  under  the  case  of  Grove  v.  Dubois,  1  T.  R.  112,  and 
Mingay  declined  all  argument  and  gave  up  the  case.  It  was  taken 
for  granted  without  argument,  that  if  the  plaintiff  would  have  had 
a  right  to  make  the  deduction  before  payment,  he  might  recover  back 
the  amount  after  payment.  Lord  Mansfield  mentioned  in  his  judg- 
ment many  cases  where  money  paid  could  not  be  recovered  back, 
although,  if  it  had  not  been  paid,  it  could  not  have  been  enforced ;  and 
he  concludes  by  saying,  that  where  money  is  paid  under  a  mistake, 
which  there  was  no  ground  to  claim  in  conscience,  it  may  be  recovered 
back.  Mistake  may  be  a  mistake  of  law  or  of  fact;  but  I  cannot  think 
Lord  Mansfield  said  "mistake  of  law;"  for  Lord  Mansfield  had, 
six  years  before,  in  Lowry  m<  Bourdieu,  heard  it  said,  "money  paid  in 
ignorance  of  the  law  could  not  be  recovered  back,"  and  had  not  dis- 
sented from  the  doctrine;  and  Buller,  J.,  sate  by  him,  who  had 
expressly  stated  the  distinction  six  years  before  in  Lowry  v.  Bourdieu, 
and  woidd  not  have  sate  by  and  heard  the  contrary  stated  without 
noticing  it.  Lord  Mansfield's  dictum  is,  that  money  paid  by  mis- 
take, which  could  not  be  claimed  in  conscience,  could  not  be  recovered 
back;  and  Lawrence,  J.,  doubted,  not  whether  the  plaintiff  had 
knowledge  of  the  law,  but  of  the  facts;  for  that  although  the  phiintiff 
seemed  to  have  l)een  apprized  1)eforo  he  paid  the  bill,  of  the  general 
outline  of  his  defence,  he  was  not  then  so  conversant  with  the  par- 
ticular facts  now  appearing,  as  to  have  been  able  to  resist  the  demand 
then  made  on  him,  if  an  action  had  been  brought.  Here  then  is,  I 
may  say,  the  ultimate  opinion  of  Jjord  Kknyon,  for  he  first  directed 
the  jury  it  might  be  recovered  back  if  paid  with  a  knowledge  of  the 
facts  but  without  knowledge  of  the  law,  which  opinion  he  wholly 
afterwards  abandons.     Among  all  the  practitioners  of  the  court  of 


CIIAr.    II.]  SIR   CHARLES   BRISBANE   V.    DACRES.  361 

King's  Bench,  where  questions  of  this  sort  ver}'  frequently  arise  on 
insurance  transactions,  we  wore  universally  of  this  opinion,  that  where 
the  money  was  paid  witli  a  knowledge  of  the  facts,  it  could  not  be 
recovered  back.  One  underwriter  chose  to  pay  rather  than  resist, 
another  resisted  and  succeeded ;  in  all  similar  cases  it  would  be  very 
easy  to  say,  "I  paid  this  without  a  knowledge  of  the  law,  and  there- 
fore may  recover  it  back."  Our  only  question,  then,  in  all  cases,  was, 
whether  the  facts  were  known.  This  was  the  universal  practice,  till 
Bilbie  v.  Lumley,  2  East,  409,  occurred :  that  case  was  tried  at  York, 
before  Eooke,  J.,  who  ruled  differently:  after  the  report  was  read, 
Lord  Ellenborough  asked  Wood,  B.,  then  of  counsel  for  the  plain- 
tiff, whether  he  could  find  any  case  which  would  support  it;  and  he 
cited  none.  Lord  p]LLENBORorGTi  said  he  never  heard  of  any,  except 
Chatfield  v.  Paxton,  and  that  it  was  so  doubtful  at  last  upon  what 
precise  ground  that  case  turned  that  it  was  not  reported,  and  the 
rule  was  made  absolute  for  a  new  trial.  Now  this  was  a  direct  decision 
upon  the  point,  certainly  without  argument;  but  the  counsel,  whose 
learning  we  all  know  and  who  was  never  forward  to  give  up  a  case 
which  he  thought  he  could  support,  abandoned  it.  In  Herbert  v. 
Champion,  1  Camp.  134,  a  distinction  is  clearly  taken  between  an 
adjustment  on  a  policy,  and  a  pa3aTient  on  the  adjustment;  and 
Lord  Ellexborougti  says,  that  if  the  money  has  been  paid,  it  cannot 
be  recovered  back  without  proof  of  fraud.  I  am  therefore  of  opinion, 
this  money  cannot  be  recovered  back.  I  think  on  principle  that 
money  which  is  paid  to  a  man  who  claims  it  as  his  right,  with  a 
knowledge  of  all  the  facts,  cannot  be  recovered  back.  I  think  it  on 
principle,  and  I  think  the  weight  of  the  authorities  is  so,  and  I 
think  the  dicta  that  go  beyond  it  are  not  supported  or  called  for  by 
the  facts  of  the  cases.  Bilbie  v.  Lumley,  I  think,  is  a  decision  to  that 
effect;  and  for  these  reasons,  I  am  of  opinion,  the  plaintiff  is  not 
entitled  to  recover. 

Chambre,  J.  I  concur  in  thinking  the  money  is  not  recoverable 
on  the  payment  of  the  private  freight,  whether  the  carriage  of  the 
treasure  be  considered  as  a  legal  or  as  an  illegal  transaction.  If 
illegal,  the  money  clearly  cannot  be  recovered ;  if  it  be  legal,  the  right 
to  carry  it  must  arise  from  the  permission  of  government ;  and  as 
the  practice  has  been  uniform  for  the  admiral  to  receive  his  third  part, 
we  must  take  it  that  it  is  a  part  of  the  practice,  and  that  the  whole 
IH'acticc  has  had  that  assent  of  the  government.  As  to  the  freight  for 
the  carriage  of  the  public  property,  I  think  it  stands  on  a  different 
ground,  and  that  the  action  is  maintainable.  The  plaintiff  had  a 
right  to  it,  and  the  defendant  in  conscience  ought  not  to  retain  it. 
The  rule  is,  that  when  lie  cannot  in  conscience  retain  it  he  must  refund 
it,  if  there  is  nothing  illegal  in  the  transaction:  the  case  is  ditTerent 
where  there  is  an  iUogality.  I  do  not  think  the  case  of  Chatfield  v. 
Paxton  applies  nuu-h  in  this  view  of  the  question.     I  never  heard 


362  SIR   CHARLES   BRISBANE  V.   DACRES.  [bOOK    II. 

of  the  several  parts  of  that  case  till  now,  but  I  think  there  are  sufficient 
authorities  to  say  this  person  has  paid  this  money  in  his  own  wrong, 
and  that  it  may  be  recovered  back.  In  the  case  of  Bilbie  v.  Lumley 
there  was  a  letter  said  to  have  been  concealed,  that  ought  to  have  been 
disclosed :  this  letter  was  shown  to  the  underwriters,  and  they  after 
reading  it  thought  fit  to  pay  the  money.  Now  there  the  maxim  volenti 
11011  fit  injuria  applies:  in  that  case  all  argument  was  prevented  by  a 
question  put  by  the  court  to  the  counsel.  I  am  not  aware  of  any  par- 
ticular danger  in  extending  the  law  in  cases  of  this  sort,  for  they  are 
for  the  furtherance  of  justice;  neither  do  I  see  the  application  of  the 
maxim  used  by  Buller,  J.,  in  the  case  of  Lowry  v.  Bourdieu,  and 
oiti^l  by  the  court  in  Bilbie  v.  Lumley,  ignorantia  juris  nan  excusat; 
it  applies  only  to  cases  of  delinquency,  where  an  excuse  is  to  be  made: 
I  have  searched  far,  to  see  if  I  could  find  any  instance  of  similar 
application  of  this  maxim.  I  have  a  very  large  collection  of  maxims, 
but  can  find  no  instance  in  which  this  has  been  so  applied.  I  cannot 
see  how  it  applies  here.  In  Lowry  v.  Bourdieu,  the  decision  turned 
on  the  transaction  being  illegal,  and  it  being  illegal  the  maxim  applied, 
in  pari  delicto  potior  est  conditio  defendentis.  Moses  v.  IMacfarlan, 
1  Bl.  R.  219,  and  a  number  of  subsequent  cases  decide,  that  where 
the  plaintiff  is  entitled,  ex  cequo  et  bono,  to  recover,  he  may  recover. 
In  Farmer  v.  Arundel,  the  opinion  of  De  Grey  is  not  a  mere  dictum, 
it  is  part  of  the  argument,  it  is  a  main  part  of  the  argument.  He 
there  says,  where  money  is  paid  under  a  mistake  either  of  fact  or  of 
law  or  by  deceit,  this  action  will  certainly  lie.  It  seems  to  me  a  most 
dangerous  doctrine,  that  a  man  getting  possession  of  money,  to  any 
extent,  in  consequence  of  another  party's  ignorance  of  the  law,  cannot 
be  called  on  to  repay  it.  Suppose  an  administrator  pays  money 
per  capita  in  misapplication  of  the  effects  of  the  intestate,  shall  it  be 
said  that  he  cannot  recover  it  back?  It  is  said,  that  may  be  remedied 
in  equity:  this  is  an  equitable  action,  and  it  would  be  of  bad  effect 
if  it  should  not  prevail  in  like  cases.  In  the  case  of  Bize  v.  Dickason, 
Lord  Mansfield  held,  that  if  a  person  has  paid  that  which  in  con- 
science he  ought,  but  the  payment  of  which  could  not  be  compelled, 
it  shall  not  be  recovered  back  in  an  action  for  money  had  and  received, 
but  that  where  a  man  has  paid  money  under  a  mistake,  which  he  was 
neither  bound  in  law  nor  called  on  in  conscience  to  pay,  he  may 
recover  it  back.  Now  the  case  against  the  plaintiff  is  not  so  strong 
as  it  has  been  stated.  I  do  not  find  in  the  case  that  any  demand 
was  ever  made  of  him,  or  any  question  mooted,  upon  which  he  thought 
it  better  to  submit  than  to  litigate  the  point.  No  option  ever  pre- 
sented itself  to  him,  and  the  maxim  volenti  non  fit  injuria  does  not 
apply.  It  appears  to  me  that  the  justice  of  the  case  with  respect  to 
the  freight  of  the  public  treasure  is  entirely  with  the  plaintiff.  As 
to  the  insurance  cases  that  have  l)een  cited,  a  great  deal  of  fabricated 
law  has  been  newly  created  within  a  few  years,  and  the  courts  have 


CHAP.    II.]  SIR   CHARLES    BRISBANE   V.    DACRES.  363 

to  decide  on  difTicult  and  complex  cases;  but  those  doctrines  must 
not  be  carried  into  the  general  law,  but  confined  to  the  occasions 
which  give  rise  to  them.  I  therefore  think  the  plaintiff  may  recover 
as  to  the  £20. 

Heath,  J.  There  are  two  questions  in  this  case.  As  to  the  question 
wliether  a  payment  made  under  ignorance  of  the  law  without  ignorance 
of  the  facts  will  enable  a  man  to  recover  his  money  back  again,  it  is 
very  difTicult  to  say  that  there  is  any  evidence  of  ignorance  of  the  law 
lu're;  an  ofTicer  is  sent  on  a  profitable  service,  the  admirals  are  in  the 
habit  of  receiving  a  proportion  of  the  officer's  recompense,  and  it  is 
very  likely  the  oiTicer  should  acquiesce  in  the  demand.  He  might  not 
like  to  contest  the  point  with  his  superior  ofificer.  I  think  a  payment 
made  with  knowledge  that  a  request  would  be  made,  is  not  distinguish- 
aljle  from  the  case  of  an  actual  demand.  Now  if  money  be  received 
without  expressing  the  use  to  which  it  is  paid,  it  is  received  to  the 
use  of  the  payer ;  but  when  it  is  expressed  to  what  use  it  is  paid,  that 
presumption  does  not  arise;  here  the  use  was  distinctly  expressed. 
Moses  V.  Macfarlan  has  properly  been  questioned  in  many  cases,  and 
particularly  by  Eyre,  C.  J.,  and  in  Marriott  v.  Hampton,  7  T.  R.  2G9. 
in  which  the  plaintiff  sought  to  recover  back  the  amount  of  a  debt 
recovered  by  law  from  him,  whereas  he  had  paid  it  before;  but  it 
was  held  that  the  action  was  not  maintainable.  That  was  the  case  of 
judicium  redditum  in  invitum,  but  this  is  a  stronger  case;  for  the 
plaintiff  is  a  judge  in  his  own  cause,  and  decides  against  himself ; 
and  he  cannot  be  heard  to  repeal  his  own  judgment.  Lord  Eldon, 
Chancellor,  in  Bromley  v.  Holland,  7  Ves.  23,  approves  Lord  Kex- 
yon's  doctrine,  and  calls  it  a  sound  principle  that  a  payment  volun- 
tarily made  is  not  to  be  recovered  back.  The  plaintiff  ought  not  to 
recover. 

Mansfield,  C.  J.  I  think  in  this  case  the  plaintiff  ought  not  to 
recover.  If  it  was  against  his  conscience  to  retain  this  money,  accord- 
ing to  the  doctrine  of  Lord  Kenyon,  an  action  might  be  maintained 
to  recover  it  back,  but  T  do  not  see  how  the  retaining  this  is  against 
his  conscience:  for  how  is  it  claimed?  Before  1801,  the  captains 
always  paid  freight  to  themselves  both  for  private  and  public  treasure, 
before  they  paid  over  the  residue  of  the  dollars.  At  that  time  it  was 
thought  proper  that  that  practice  should  be  discontinued  so  far  as 
related  to  the  freight  of  the  public  treasure;  but  in  order  to  make 
captains  more  attentive  to  their  charge,  the  Treasury  and  Admiralty 
thought  it  would  be  proper  to  make  them  an  allowance,  and  that  was 
to  be  paid  to  the  captain  by  a  warrant  from  the  treasury;  but  so 
it  had  before  been,  when  the  captain  deducted  it,  that  was  paid  to  the 
captain,  and  before  that  a  practice  had  prevailed,  one  knows  not  how, 
but  probably  by  some  analogy  to  the  practice  of  prize-money,  that  the 
flag  officer,  when  only  one,  should  be  entitled  to  one-third  ;  when 
more  than  one  ffag  officer,  they  shared  it  in  certain  proportions.     In 


36i  SIR   CHARLES   BRISBANE   V.   DACRES.  [BOOK    II. 

the  order  which  was  made  for  letting  them  thenceforth  be  paid  by  a 
warrant,  instead  of  deducting  the  freight  themselves,  nothing  is  said 
about  any  allowance  to  be  made  to  admirals;  the  order  is  quite  silent 
on  the  subject  of  what  the  captain  shall  do  with  the  freight  when  he 
has  it,  but  the  officers  of  the  navy  all  thinking  that  they  were  to  pro- 
ceed as  they  before  did,  go  on,  the  one  to  pay,  and  the  other  to  receive, 
as  they  had  done  before  this  alteration,  and  the  admirals  receive  their 
share  as  before;  the  admiral  and  captain  each  thinking  that  their 
rights  continue  as  before,  the  admiral,  that  he  has  his  accustomed 
right;  the  captain,  that  it  is  his  duty  to  pay  the  accustomed  share, 
the  one  pays  and  the  other  receives  it.  This  then  being  so,  the  admiral 
doing  no  more  than  all  admirals  do,  is  it  against  his  conscience  for 
him  to  i^ain  itf- "f  "fiTid  nothiirg^  CDTrtrary  to  a'quumet  l)onum,  to 
bringTt^'WTthTn-the  case  of  Moses  v.  Macf  arlan,  in  his  retaining  it.  So 
far  from  its  being  contrary  to  aquum  et  honum,  I  think  it  would  be 
most  contrary  to  ccquum  et  honum  if  he  were  obliged  to  repay  it  back. 
For  see  how  it  is !  If  the  sum  be  large,  it  probably  alters  the  habits 
of  his  life;  he  increases  his  expenses,  he  has  spent  it  over  and  over 
again;  perhaps  he  cannot  repay  it  at  all,  or  not  without  great  dis- 
tress: is  he  then,  five  j^ears  and  eleven  months  after,  to  be  called  on 
to  repay  it?  The  case  of  Farmer  v.  Arundel  and  De  Grey's  maxim 
there,  is  cited ;  it  certainly  is  very  hard  upon  a  judge,  if  a  rule  which 
lie  generally  lays  down  is  to  be  taken  up  and  carried  to  its  full  extent. 
This  is  sometimes  done  by  counsel,  who  have  nothing  else  to  rely  on; 
but  great  caution  ought  to  be  used  by  the  court  in  extending  such 
maxims  to  cases  which  the  judge  who  uttered  them  never  had  in 
contemplation.  If  such  is  the  use  to  be  made  of  them,  I  ought  to 
be  very  cautious  how  I  lay  down  general  maxims  from  this  bench. 
In  the  case  of  Bize  v.  Dickason,  the  money  ought  conscientiously  to 
have  been  repaid.  There  is  no  other  case  cited  as  an  authority  for 
the  proposition.  The  maxim  volenti  non  fit  injuria  applies  most 
strongly  to  this  case.  Lowry  v.  Bourdieu  was  the  case  of  a  gaming 
policy.  A  bond  had  been  given  for  securing  the  money  lent,  which 
was  the  only  interest  intended  to  be  insured;  if  the  plaintiff  could 
have  recovered  on  the  policy,  ho  might  have  recovered  the  money  twice. 
The  insurance  was  on  goods,  and  he  had  no  interest  whatsoever  in 
those  goods,  otherwise  than  that  if  the  goods  arrived  the  owner  of 
them  would  be  the  better  able  to  pay  his  debt.  The  last  case  is 
Bilbie  v.  Lumley.  Certainly  it  was  not  argued,  but  it  is  a  most  positive 
decision,  and  the  counsel  was  certainly  a  most  experienced  advocate 
and  not  disposed  to  abandon  tonal)le  points,  ^ly  Brother  Ciiambre 
put  the  case  of  an  administrator  paying  away  the  assets  in  an  undue 
course  of  administration.  I  know  not  that  he  could  recover  back 
money  so  paid:  certainly  if  he  could,  it  could  be  only  under  the 
principle  of  CBquum  et  honum.  There  being  therefore  no  case  which 
has  been  argued  by  counsel,  wherein  the  distinction  has  been  taken. 


CHAP.    II.]  SIR   CHARLES   BRISBANE   V.    DACRES.  365 

and  in  whicli  this  doctrine  has  been  held,  and  as  we  do  not  feel  our- 

vselves  called  upon  to  overrule  so  express  an  authority  as  Bilbie  v. 

Lumley,  I  am  of  opinion  that  the  defendant  is  entitled  to  retain  this 

money.    We  hear  nothing  of  what  is  become  of  the  assets  in  this  case; 

perhaps  they  may  be  applied  among  the  next  of  kin,  and  dissipated; 

but  what  would  be  the  situation  of  the  parties,  if,  at  the  end  of  five 

years  and  eleven  months,  they  could  be  called  on  to  refund  in  such 

a  case !     I  am  therefore  of  opinion  that  there  ought  to  be  judgment 

for  the  defendant.  ,    ,  ,  .      „      ,  ,      7     , , 

Judgment  for  the  defendant. 

'Wliilo  P.nbie  v.  Lumley  seems  to  have  been  the  first  case  in  which  the 
di^lincticii  in  question  was  taken,  it  is  doubtful  if  it  would  have,  of  itself, 
soltU'J  tlie  law  on  this  subject.  The  principal  case  established  Bilbie  v.  Lum- 
ley and  its  law  for  England,  and  the  distinction  between  mistake  of  law  and 
fact  has  since  been  generally,  if  not  universally,  followed  in  law  as  well  as 
equity,  both  in  England  and  in  the  United  States. 

For  eases  in  the  various  jurisdictions,  see  15  Am.  &  Eng.  Enc.  of  Law, 
(2d  Ed.)    1102-1104;   22  ib.  G28;   39  Am.  Digest    (Cent,  ed.)    column  438. 

For  the  eminently  sane  and  equitable  doctrine  on  this  subject,  obtaining  in 
Louisiana,  see  La.  Civil  Code,  Art.  1840,  and  Howe's  Studies  in  the  Civil  Law, 
179-180. 

For  a  discussion  of  the  doctrine,  see  2  Evans'  Pothier,  Appendix  313-34G; 
Keencr's  Treatise  on  Quasi-Contracts,  85-112;  Mr.  Frederic  C.  Woodward's 
Money  paid  under  Mistake  of  Law,  5  Columbia  L.  Rev.  366-379.  And  see  an 
article  discussing  the  cases  and  their  doctrine  in  18  N.  J.  Law  Journal, 
103-107. 

Whether  the  Roman  law  permitted  recovery  of  money  paid  through  mis- 
take of  law  is  a  matter  of  dispute.  The  following  paragraph  states  the  ques- 
tion cle'arlj  and  accurately:  "Tn  Roman  law,  a  person  who,  by  mistake,  paid 
money  which  was  not  due,  could  -recover  it  by  an  action  known  as  condictio 
indebiti  (Just.  iii.  27.  6;  Dig.  12.  6;  Cod.  4.  5).  The  right  to  recover  could 
not  be  enforced  where  the  money  was  due  under  a  natural  obligation  {Dig. 
12.  6.  51),  or  where  the  party  making  the  payment  knew  at  the  time  that  no 
debt  was  due  {Dig.  50.  17.  53).  The  question  whether  money  paid  under  a 
mistake  in  law,  could  be  recovered  by  a  condictio  indebiti.  has  given  rise  to 
much  controversy  among  civilians  (the  opinions  of  the  leading  jurists  on  this 
subject  are  collected  by  Lord  Mackenzie  in  his  treatise  on  I'oman  Lair.  0th  ed., 
at  p.  256)  ;  but  the  weight  of  modern  authority  is  in  favor  of  the  view  that, 
under  Roman  Law,  money  which  had  been  paid  by  mistake  of  law,  and  not 
of  fact,  could  not  be  recovered  by  the  covdictio  indebiti  (Savigny,  Sifntcm.  vol. 
iii.  8,  s.  25;*Cod.  1.  18.  10;  4.  5.  6;  Dig.  12.  0.  1.  1).  Further,  every  error 
of  fact  did  not  give  a  claim  to  restitution,  but  only  such  an  error  as  a  man, 
exercising  ordinary  diligence  and  prudence,  might  fall  into.  {Dig.  22.  6.  0.  2: 
22.  0.  G.)."  3  Green's  Encyc.  of  Scots  Law,  170.  See  also,  2  Windsclieid's 
Pandekten,  §  42G :  Girard,  IManuel  de  Droit  Romain.  (512-014. 

The  two  English  cases  crossed  the  Tweed  in  1830  and  either  overthrew  or 
threw  into  confusion  the  Scotch  law.  "With  regard  to  error  in  law,  the  old 
rule  in  Scots  law  was  that  a  condictio  indebiti  could  be  enforced  by  one  who 
had  made  payments  owing  to  a  mistake  in  law   (Stirling,  1775,  Mor.  2930; 


366  HEXDERSOX    I".    FOLKESTOXE    WATERWORKS   CO.       [BOOK   II. 

HENDERSON  v.  THE  FOLKESTONE  WATERWORKS  CO. 

Queen's  Bench  Divisiox,  1885. 

[1  Times  Law  Reports,  329.] 

The  plaintiff,  the  owner  and  occupier  of  a  house  at  Folkestone, 
had  been,  as  he  alleged,  rated  by  the  water  company  in  excess  of  what 
was^  held  to  be  legal  in  I)obbs\_case  in  the  House  of  Lords,  and  he 
had  paid  the  amount  demanded  of  him  under  the  impression  th^Ttl^ 
was  "Bound^to"  do  so,  and  now  he  sued  the  company  to  recover  Lack 
the  excess:  The  comrpanyT  on  their  side,  set  up  that  it  was  a  voluntary 
payment  and  not  recoverable.  The  plaintiff  set  up  in  answer  that  it 
was  paid  by  compulsion.  But  the  Court  found  as  a  fact  that  the 
payment  was  voluntary. 

Mr.  Henderson  appeared  for  the  plaintiff,  and  contended  that  where 
both  parties  had  contracted  under  a  mistake  the  money  could  be  recov- 
ered. Moreover,  he  contended  that  this  was  really  a  payment  under 
compulsion.  It  was,  at  all  events,  a  payment  in  ignorance  of  law. 
[Lord  Coleridge. — Of  what  law?  I  was  ignorant  of  it  before  the 
decision  of  the  House  of  Lords.     I  had  held  the  contrary,  and  two 

Carrick,  1778,  Mor.  2931;  Keith,  1792,  Mor.  2933).  Subsequently,  however, 
the  House  of  Lords  iri  two  cases  laid  it  down  in  general  terms  [per  Lord 
Brocgham]  that  it  is  not  relevant  for  a  party,  seeking  a  repetition,  to  aver 
that  he  paid  under  a  mistake  in  point  of  law  (Wilson  &  McLellan,  1830,  4 
W.  &  S.  398;  Dixons,  1831,  5  W.  &  S.  445)  :  but  the  Scots  courts  have  shown 
considerable  hesitation  in  accepting  the  dicta  in  these  cases  as  finally  settling 
the  law  of  Scotland  on  this  matter  (cf.  Dickson,  1854,  16  D.  586,  where  doubts 
are  expressed  by  the  Lords  President  and  Ivory  as  to  error  in  law  being  in 
no  case  a  ground  for  the  condictio  indebiti;  see  also,  Paterson,  1866,  4  M.  706, 
and  Mercer,  1871,  9  M.  618)."  3  Green's  Encyc.  of  Scots  Law,  171.  See  also. 
Bell's  Principles  of  the  Law  of  Scotland  (9th  ed.)   §  534  n.  (K). 

In  Germany  no  distinction  is  taken  between  a  mistake  of  law  and  fact: 
in  either  case  the  plaintiff  may  recover  unless  he  actually  knew  when  he  paid 
that  the  money  was  not  owed.  Biirgerliches  Gesetzbuch,  §§  812-814;  Dernburg's 
Burgerliches  Recht,  vol.  i,  p.  434;  vol.  iii.  p.  279. 

Nor  is  the  distinction  recognized  in  France:  Code  Civil  (edition  of  Dalloz) 
Arts.  1376-1378;  Baudry-Lacantinerie  &  Barde's  Droit  Civil:  Des  Obligations, 
vol.  3.  part  3,  pp.  1067-1068.  But  recovery  is  refused  if  after  payment  the 
defendant  has  changed  his  legal  position  so  as  to  throw  loss  of  the  sum  on  him 
if  recovery  were  permitted.  Code  Civil,  Art.  1377.  This  provision  is  likewise 
found  in  the  various  European  and  Spanish-American  Codes  in  which  the 
distinction  between  mistake  of  law  and  fact  is  either  unknown  or  rejected: 
Italian  Civil  Code  (French  translation  of  Prudhomme),  Arts.  1145-1147; 
Spanish  Civil  Code  (Falcon) ,  Arts.  189.5-1901.  The  editions  cited  of  the  Italian 
and  Spanish  Codes  are  annotated  and  give  the  law  on  this  subject  in  European, 
Central  and  South  American  States  and  Mexico. — Ed. 


CHAP.    II.]       HENDERSON  I'.  FOLKESTONE  WATEiaVOlfKS  CO.  367 

eminent  Judges  agreed  with  me.  Can  that  l)c  put  as  ignorance  of 
law?^  Just  see  what  consequences  would  follow — that  wherever  there 
has  been  a  reversal  of  judgment  all  the  money  that  has  been  paid 
under  the  previous  notion  of  the  law  can  be  recovered  back !  Has 
that  ever  been  held  ?  Can  it  be  that  every  reversal  of  a  decision  may 
give  rise  to  hundreds  of  actions  to  recover  back  money  previously 
paid?]  The  result  is  not  one  to  be  regarded  as  morally  unjust. 
[Lord  Coleridge. — It  surely  is  a  startling  result.]  It  may  be  startling 
to  water  companies,  but  to  the  plaintiff  and  their  other  customers  it 
may  not  seem  so.  They  have  been  paying  the  companies  excessive 
charges,  and  may  justly  recover  them  back. 

Mr.  Charles.  Q.  C.  (with  Mr.  Kingsford),  appeared  for  the  water 
company,  and  pointed  out  that  it  was  expressly  stated  that  the  payment 
was  voluntary,  and  that  the  plaintiff  had  taken  no  steps  to  get  the 
charge  put  right. 

The  Court,  however,  did  not  require  them  to  argue  the  case,  and 
proceeded  at  once  to  give  judgment  against  the  plaintiff. 

Lord  Coleridge  said  the  law  was  quite  clear  that  the  plaintiff  could 
not  recover  back  this  money.  No  doubt  when  money  paid  under  an 
error  in  law  had  been  extorted  or  obtained  by  duress  or  any  kind 
of  compulsion  it  could  be  recovered  back,  but  that  was  not  the  case 
here.  The  law  once  ascertained  to  have  been  against  the  party  who 
had  thus  by  compulsion  obtained  payment  of  the  money,  it  can  be 
recovered  back.    But  here  at  the  time  the  money  was  paid,  which  was 

'The  learned  jiulfie  had  good  authority  for  his  statement.  The  catch  phrase 
that  every  one  is  supposed  to  know  the  law.  especially  the  judfie.  is  a  supposi- 
tion contrary  to  fact,  and  is  little  less  than  absurd.  In  Jones  r.  Randell  ( 1774) 
Cowp.  38,  40,  Dunning,  arguendo  said:  "Laws  of  this  character  are  clearly 
evident  and  certain;  all  the  judges  know  the  law."  ...  To  which  Lord 
JiLA.NSFiELD,  no  mean  authority,  replied:  "It  would  be  very  hard  upon  the 
profession,  if  the  law  was  so  certain  that  everybody  knew  it;  the  misfortune  is 
that  it  is  so  uncertain,  that  it  costs  much  money  to  know  what  it  is,  even  in  the 
last  resort." 

In  Montriou  r.  .Teffereys  (1825)  2  C.  &  P.  II.'MIR,  Abhott.  C.  J.— a  very 
learned  judge — exclaimed:  "God  forbid  that  it  should  be  imagined  that  an 
attorney,  or  a  counsel,  or  even  a  judge,  is  bound  to  know  all  the  law." 

And  in  Martindale  j;.  Falkner  (1846)  2  C.  B.  706.  719,  Justice  ]Maule 
said:  "There  is  no  presumption  in  this  country  that  every  person  knows  the 
law;  it  would  be  contrary  to  common  sense  and  reason  if  it  were  so," 

And  it  would  seem,  in  the  absence  of  judicial  precedents,  that  even  a 
professor  of  law  except  in  rare  instances  is  not  within  the  letter  of  the  maxim. 

The  maxim  doe«,  however,  apply  in  certain  cases.  As  Judge  Keener  aptly 
says:  "In  a  word,  then,  one  cannot  by  alleging  ignorance  of  law  justify  the 
commission  of  a  crime  (though  if  knowledge  of  law  is  material,  he  can  show 
that  because  of  ignorance  of  law  no  crime  was  committed),  a  breach  of  con- 
tract, or  quasi-contract,  or  the  commission  of  a  tort."  Treatise  on  Quasi- 
Contracts,  90. — En. 


368  CULBREATH  V.   CULBREATH.  [bOOK  II. 

before  Dobbs's  case,  the  law  was  in  favour  of  the  company,  and  there 
was  no  authorit}'  to  show  that  it  coukl  be  recovered  back  on  account 
of  a  judicial  decision  reversing  the  former  understanding  of  the  law. 
Moreover,  in  this  case  the  payment  was  voluntary,  and  the  assessment 
had  been  altered  as  to  the  future.  If  the  plaintiff  desired  to  dispute 
the  assessment  he  could  have  applied  to  the  magistrates  to  reduce  it 
under  the  statutory  power  so  to  do.  The  law,  however,  did  not  allow 
money  voluntarily  paid  under  a  mistake  in  law  to  be  recovered  back. 

]\rr.  Justice  A.  L.  Smith  concurred,  and  observed  that  though  the 
amount  involved  was  small  the  principle  involved  was  important,  and 
the  question  had  been  decided  in  our  Courts  nearly  a  century  ago. 
The  learned  Judge  cited  two  cases  to  show  this,^  and  added  that  he 
had  never  heard  it  doubted  that  money  paid  voluntarily,  though 
under  a  mistake  in  law,  could  not  be  recovered  back. 

Judgment  for  the  defendant. 


WILLIAM  CULBREATH,  PLAINTIFF  IN  EEROR  v.  JAMES 
M.  AND  DANIEL  G.   CULBREATH,  DEFENDANTS. 

Supreme  Court  of  Georgia,  1849. 

[7  Georgia,  64.] 

Obadiah  M.  Culbreath  died  intestate,  leaving  neither  wife  nor 
children.    His  nearest  of  kin  were  seven  surviving  brothers  and  sisters, 
and  the  children  of  a  deceased  sister.    William  Culbreath,  the  admin-_ 
istrator,  under  a  misapprehension  of  the  law,  divided  the  estate  equally 
betwTenTthe  seven  brothers  and  sisters,  to  the  exclusion  of  the  children 
of  the  deceased  sister.     Subse^^uently,  these  children  instituted  suit^ 
against    the  administrator  and  recovered  the  one-eighth  of  the  estate.  ^ 
'  The  preseiit  action  was  by  William  Culbreath  against  two  of  the   . 
distriWtrees'j'to  recover  iiaclrtiie^amo  uutoverpaid  on  account  of  this 
jnistake. 

Upon  an  agreed  statement  of  the  facts  in  the  court  below,  the  pre- 
siding judge  awarded  a  nonsuit  against  the  plaintiff,  who  appealed  to 
this  court. 

By  the  Court, — Nisbet,  J.,  delivering  the  opinion.  1.  The  judg- 
ment of  nonsuit  was  awarded  by  the  court  below  in  this  case,  upon 
the  following  state  of  facts,  agreed  upon  by  the  parties :  "The  actions 
were  founded  u]ion  a  voluntary  payment  made  to  each  of  the  de- 
fendants l)y  the  ])laintiff,  as  administrator  of  Obadiah  M.  Culbreath, 
deceased,  of  one-seventh  part  of  said  intestate's  estate,  as  part  of 
their  distributive  shares  of  said  estate,  in  ignorance  of  the  law  of 

^Bilbie  v.  Luinlcy,  ante,  Brisbane  v.  Dacres,  ante. — Ed. 


€IIAP.    II.]  CULBREATII   V.   CULBREATII.  3G9 

distribution  of  estates.  After  the  payments,  the  children  of  a  de- 
ceased sister  of  the  intestate  and  also  of  the  defendants,  in  being  at  the 
time  of  the  payments,  and  known  and  recognized  as  such  children 
of  a  deceased  sister  of  the  intestate  and  of  the  defendants,  brought 
suit  against  the  plaintiff,  as  administrator  aforesaid  to  recover  their 
distributive  share  of  the  estate  of  said  intestate,  it  being  one-eighth 
of  said  estate,  and  did  recover.  The  suits  now  pending  were  brought 
by  the  plaintiff  to  recover  of  defendants  tlieir  proportion  of  the  over- 
payment to  them."  Upon  the  hearing,  the  presiding  judge  nonsuited 
the  plaintiff,  with  leave  to  move  at  the  next  term,  to  set  aside  the 
nonsuit  and  reinstate  the  cases.  Which  motion  being  made,  was  re- 
fused, and  to  that  decision  the  plaintiff  excepted. 

Upon  the  hearing  before  this  court,  it  was  conceded  on  both  sides, 
that  with  a  knowledge  of  all  the  facts  the  plaintiff  acted  upon  a  mis- 
take of  the  law.  That  was  considered  as  proven.  Believing  that  the 
defendants  were  entitled  to  the  whole  of  the  estate  of  his  intestate,  to 
the  exclusion  of  the  children  of  his  deceased  sister,  through  a  mis- 
take as  to  the  law  he  paid  to  them  the  share  which  was  rightfully  due 
to  those  children.  They  having  sued  and  recovered  of  him  their  dis- 
tributive share,  he  brings  these  actions  to  recover  of  the  defendants 
the  money  so  paid  to  them,  through  a  mistake  of  the  law.  The  ques- 
tion is,  can  a_parj:y  recover  back  money  paid,  with  a  knnwlpdge  of  alL 
the  factSj  through  mistake  of  the  law? 

We  are  fully  aware  that  the  authorities  upon  this  question  are  in 
conflict,  as  well  in  England  as  in  this  country.  Great  names  and 
courts  of  eminent  authority  are  arra^-ed  on  either  side.  It  is  not  one 
of  those  questions  upon  which  the  mind  promptly  and  satisfactorily 
arrives  at  a  conclusion.  This  is  true  in  reference  both  to  principle 
and  authority.  It  is  not  surprising,  therefore,  that  Judge  Alexander 
and  this  court  should  differ.  I  think,  and  I  shall  try  to  prove,  that 
the  weight  of  authority  is  with  us.  If  it  were  so — if  authorities  were 
balanced — we  feel  justified  in  kicking  the  beam,  and  ruling  according 
to  that  naked  and  changeless  equity  which  forbids  that  one  man  should 
retain  the  money  of  his  neighbor,  for  which  he  paid  nothing,  and  for 
which  his  neighbor  received  nothing;  an  equity  which  is  natural,  which 
savages  understand,  which  cultivated  reason  approves,  and  which 
Christianity  not  only  sanctions  but  in  a  thousand  forms  has  ordained. 
In  ruling  in  favor  of  these  actions,  we  aim  at  no  visionary  moral  per- 
fectibility. We  feel  the  necessity  of  practicable  rules,  l)y  which  rights 
are  to  be  protected  and  wrongs  redressed.  We  know  the  necessity,  too, 
of  general  rules,  and  how  absurd  would  be  that  attempt,  which  seeks 
to  administer  the  equity  which  springs  from  each  and  every  case. 
The  insufficiency  which  marks  all  lawgivers,  laws,  and  tribunals  of 
justice,  makes  that  a  hopeless  thing.  Still,  where  neither  positive  law 
nor  a  well  settled  train  of  decisions  impose  upon  courts  a  prohibition, 
they  are  at  liberty,  nay,  bound  to  respect  the  authority  of  natural 


370  CULBREATII  V.  CULBREATH.  [BOOK  II. 

equity  and  sound  morality.  Where  these  are  found  on  one  side  of  a 
doubtful  question,  they  ought  to  cast  the  scale.  Moreover,  we  believe 
that  the  rule  we  are  about  to  lay  down  may  be  so  guarded,  as  in  its 
application  to  be  both  practicable  and  politic. 

It  is  difficult  to  say  that  an  action  for  the  recovery  of  money  paid  by 
mistake  of  the  law  will  not  lie,  upon  those  principles  which  govern  the 
action  of  assumpsit  for  money  had  and  received.  Those  principles  are 
well  settled  since  the  great  case  of  Moses  v.  Macfarlan,  in  2  Burrow, 
1005.  The  grounds  upon  which  that  necessary  and  most  benign 
remedy  goes,  are  there  laid  down  by  Lord  Mansfield.  This  claim 
falls  within  the  principles  there  settled,  and  cannot  be  distinguished 
from  cases  which  have  been  ruled  to  fall  within  them,  but  by  an 
arbitrary  exclusion.  I  am  not  now  using  the  case  of  Moses  v.  Mac- 
farlan as  the  authority  of  a  judgment  upon  the  precise  question  made 
in  this  record :  although  Lord  Mansfield  there  held,  that  money  paid 
by  mistake  could  be  recovered  back  in  this  action,  without  distinguish- 
ing between  mistake  of  law  and  fact.  I  refer  to  it,  to  demonstrate 
what  are  the  principles  upon  which  the  action  is  founded.  It  is  not 
founded  upon  the  idea  of  a  contract.  In  answer  to  the  objection,  that 
assumpsit  would  lie  only  upon  a  contract,  express  or  implied,  Lord 
Mansfield  said,  "If  the  defendant  be  under  an  obligation,  from  the 
ties  of  natural  justice,  to  refund,  the  law  implies  a  debt,  and  gives 
this  action,  founded  in  the  equity  of  the  plaintiff's  case,  as  if  it  Avere 
upon  the  contract."  Again:  "One  great  benefit  derived  to  a  suitor 
from  the  nature  of  this  action  is,  that  he  need  not  state  the  special 
circumstances  from  which  he  concludes  that  ex  mquo  et  bono  the 
money  received  by  the  defendant  ought  to  be  deemed  belonging  to 
him." 

"The  defendant,"  says  his  Lordship,  farther,  "may  defend  himself 
by  everything  which  shows  that  the  plaintiff,  ex  cequo  et  bono,  is  not 
entitled  to  the  whole  of  his  demand,  or  to  any  part  of  it."  His  sum- 
mary is  in  the  following  words:  "In  one  word,  the  gist  of  this  action 
is,  that  the  defendant,  upon  the  circumstances  of  the  case,  is  obliged 
by  the  ties  of  natural  justice  and  equity  to  refund  the  money."  In 
the  language  of  the  civilians,  from  whom  Lord  Mansfield  borrowed 
many  valuable  principles,  "Hoc  nntura  (vqnum  est,  neminem  cum 
alterius  detrimento  fieri  locupletiorem." 

If  there  is  justice  in  the  plaintiff's  demand,  and  injustice  or  un- 
conscientiousness  in  the  defendant's  withholding  it,  the  action  lies; 
or,  to  use  more  appropriate  language,  the  law  will  compel  him  to  pay. 
Now,  when  money  is  paid  to  another,  under  a  mistake  as  to  the  pa^yer's 
legal  obligation  to  pay,  and  the  payee's  legal  right  to  receive  it,  and 
there  is  no  consideration,  moral  or  honorary  or  benevolent,  between 
the  parties,  by  the  ties  of  natural  justice  the  payer's  right  to  recover 
it  back  is  perfect,  and  the  payee's  obligation  to  refund  is  also  perfect, — 
it  becomes  a  debt.    It  is  a  case  fully  within  the  range  of  the  ex  cequo 


CJIAP.    11.]  CULBREATII   V.   CDLBREATII.  371 

et  bono  rule.  This  is  that  case.  It  falls  within  none  of  the  exceptions 
mentioned  by  Lord  Mansfield.  It  was  not  paid  as  a  debt  due  in 
honor  or  honesty,  as  in  case  of  a  debt  barred  by  Statute ;  it  is  not  paid 
as  a  donation;  it  was  not  paid  as  a  debt  contracted  in  violation  of 
public  law;  for  example,  money  fairly  lost  at  play.  In  all  such  cases 
it  is  conscientious  for  the  defendant  to  keep  it.  In  this  case  there  is 
no  right  or  equity  or  conscience  upon  which  the  defendant  can  plant 
himself.  Why,  then,  is  not  the  case  of  a  payment  by  mistake  of  the 
law  within  the  .principles  of  Moses  v.  Macfarlan? 

Right  here  the  argument  might  rest  on  principle.  Just  here  the 
onus  is  cast  upon  the  other  side,  to  show  how  and  why  this  case  is 
distinguishable  from  other  cases  falling  confessedly  within  the  prin- 
ciples upon  which  the  action  for  money  had  and  received  is  based. 
We  shall  see  upon  what  footing  the  distinction  is  placed  by  Lord 
Ellenborougii.  It  is  that  of  policy.  The  doctrine  which  I  am  now 
repelling  never  was  defended  upon  principle;  it  never  can  be.  No 
British  or  American  judge  ever  attempted  its  defence  on  principle.  It 
was  ruled  on  policy,  and  followed  upon  the  authority  of  a  few  prece- 
dents. A  policy  which,  it  must  be  conceded,  does  private  wrong,  for  the 
sake  of  {Ui  alleged  public  good  :  or,  I  should  more  appropriately  say, 
rather  than  risk  a  doubtful  public  evil.  It  was,  no  doubt,  this  view  of 
the  subject  which  startled  the  calm  philosophical  equity  of  Marshall's 
mind,  when  yielding,  in  Hunt  v.  Eousemanier,  to  precedent,  he  still 
gave  in  his  personal  protest  against  the  doctrine.  For  what  he  said 
in  that  case  can  be  viewed  in  no  other  light  than  as  a  personal  protest. 
It  is  wise,  it  is  necessary  for  courts  to  yield  to  established  authority; 
but,  inasmuch  as  the  use  of  precedent  is  to  illustrate  principle,  a 
single  precedent,  or  a  number  of  precedents  should  not  control,  when 
they  are  against  principle. 

We  guard  this  doctrine  by  saying,  that  the  action  is  not  maintain- 
able, where  money  is  paid  through  mere  ignorance  of  the  law.  or  in 
fulfilment  of  a  moral  obligation,  or  on  a  contract  against  public  law, 
or  on  any  account  which  will  make  it  consistent  with  equity  and  good 
conscience  for  the  defendant  to  retain  it.  Xor  does  the  judgment  of 
this  court  embrace  cases  of  concealment,  fraud,  or  misrepresentation. 
They  depend  upon  principles  peculiar  to  themselves.  And  farther, 
it  is  scarcely  necessary  to  add  that  a  recovery  cannot  be  had,  unless 
it  is  proven  that  the  plaintiff  acted  upon  a  mistake  of  the  law. 

2.  There  is  a  clear  and  practical  distinction  between  ignorance  and 
mistake  of  the  law.  Much  of  the  confusion  in  the  books,  and  in  the 
minds  of  professional  men,  upon  this  subject,  has  grown  out  of  a 
confounding  of  the  two.  It  may  be  conceded,  that  at  first  view,  the 
distinction  is  not  apparent;  but  it  is  insisted  that  upon  close  inspection 
it  becomes  quite  obvious.  It  has  been  ridiculed  as  a  quibble,  but  we 
shall  see  that  is  has  been  taken  by  able  men.  and  acted  upon  by  emi- 
nent courts.     Ignorance  implies  passiveness;  mistake  implies  action. 


372  CULBREATH  V.  CULBREATH,  [BOOK  II. 

Ignorance  does  not  pretend  to  knowledge,  but  mistake  assumes  to 
know.  Ignorance  may  be  the  result  of  laches,  which  is  criminal; 
mistake  argues  diligence,  which  is  commendaljle.  Mere  ignorance  is 
no  mistake,  but  a  mistake  always  involves  ignorance,  yet  not  that 
alone.  The  difference  may  be  well  illustrated  by  the  case  made  in  this 
record.  If  the  plaintiff,  the  administrator,  had  refused  to  pay  the 
distrilmtive  share  in  the  estate  which  he  represented,  to  the  children  of 
his  intestate's  deceased  sister,  upon  the  ground  that  they  were  not 
entitled  in  law,  that  would  have  been  a  case  of  ignorance,  and  he 
would  not  be  heard  for  a  moment  upon  a  plea,  that  being  ignorant 
of  the  law  he  is  not  liable  to  pay  interest  on  their  money  in  his  hands. 
But  the  case  is,  that  he  was  not  only  ignorant  of  their  right  in  law, 
but  believed  that  the  defendants  were  entitled  to  their  exclusion,  and 
acted  upon  that  belief,  by  paying  the  money  to  them.  The  ignorance 
in  this  case  of  their  right,  and  the  belief  in  the  right  of  the  defendants, 
and  action  on  that  belief,  constitute  the  mistake. 

The  distinction  is  a  practical  one,  in  this,  that  mere  ignorance  of 
the  law  is  not  susceptible  of  proof.  Proof  cannot  reach  the  con- 
victions of  the  mind,  undeveloped  in  action ;  whereas,  a  mistake  of 
the  law,  developed  in  overt  acts,  is  capable  of  proof,  like  other  facts. 

3.  The  usual  reply  to  all  this  is  the  time-honored  maxim,  igno- 
rantia  juris  non  excusat.  We  do  not  make  void  this  maxim  in  any 
fair  construction  of  it.  It  is  an  indispensable  rule  of  legal  and  social 
policy :  it  is  that  without  which  crime  could  not  be  punished,  right 
asserted,  or  wrong  redressed.  What  if  its  application  does,  in  some 
cases,  work  injustice?  Its  overruling  necessity,  and  the  vast  pre- 
ponderance of  its  benefits  over  its  evils,  have  reconciled  the  civilized 
world  to  its  immovable  status  as  a  rule  of  action.  The  idea  of  excuse 
implies  delinquency.  No  man  can  be  excused  upon  a  plea  of  ignorance 
of  the  law,  for  disobeying  its  injunctions  or  violating  its  provisions 
or  abiding  his  just  contracts.  He  is  presumed  to  know  the  law,  and 
if  he  does  not  know  it,  he  is  equally  presumed  to  be  delinquent.  I  re- 
mark, to  avoid  misconstruction,  that  it  is  of  universal  application  in 
criminal  cases.  In  civil  matters,  it  ought  not  to  be  used  to  effectuate 
a  wrong.  That  is  to  say,  it  cannot  be  a  sufficient  response  to  the 
claim  of  an  injured  person,  that  he  has  been  injured  by  his  own  mis- 
take of  the  law,  when  the  respondent,  against  conscience,  is  the  holder 
of  an  advantage  resulting  from  that  mistake.  The  meaning,  then, 
of  this  maxim  is  this:  no  man  can  shelter  himself  from  the  punish- 
ment due  to  crime,  or  excuse  a  wrong  done  to,  or  a  right  witliheld 
from  another,  under  a  plea  of  ignorance  of  the  law.  The  maxim  con- 
templates the  punishment  of  crime,  the  redress  of  wrong,  and  the  pro- 
tection of  rights.  It  is  not  unreasonable  so  to  construe  it  as  to  apply 
it  to  one  who  has  not  only  done  no  wrong  and  withheld  no  right,  but 
is  himself  the  injured  party,  as  in  this  case?  The  plaintiff  has  vio- 
lated no  law,  withheld  no  right  from  the  defendants,  and  in  no  partic- 


CHAP.  II. J  CULBREATII  V.   CULBREATH.  373 

ular  wronged  them;  but  on  the  contrary,  he  has  been  injured  to  the 
extent  of  the  money  which  they  unrighteously  withhold  from  him.  In 
this  view  of  it,  too,  the  public  policy  of  the  maxim  is  sustained.  I 
cannot  see  that  its  utility  is  lessened  by  this  limitation  of  its  applica- 
tion. In  the  language  of  Sir  W.  D.  Evans,  "The  effect  of  the  doctrine 
is  carried  sufficiently  far  for  the  purposes  of  public  utility,  by  holding 
that  no  man  shall  exempt  himself  from  a  duty,  or  shelter  himself  from 
the  consequences  of  infringing  a  prohibition  imposed  by  law,  or 
acquire  an  advantage  in  opposition  to  the  legal  rights  and  interests  of 
another,  by  pretending  error  or  ignorance  of  the  law."  2  Poth.  Ob. 
App.  297. 

The  distinction  between  ignorance  and  mistake  of  the  law,  is  recog- 
nized by  Lord  Eoslyn  in  Fletcher  v.  Talbot,  5  Ves.  14;  by  Lord 
Manners^  in  Leonard  v.  Leonard.  2  Ball  &  B.  180,  183;  by  the  Court 
of  Appeals  of  South  Carolina,  in  Lawrence  v.  Bedubien,  2  Bai.  623 ; 
and  in  the  Executors  of  Hopkins  v.  Mazyck  ct  al,  1  Hill  Ch.  251. 

In  England,  the  authorities  are  pretty  nearly  in  equilibrio,  yet  I 
must  think  that  the  preponderance,  taking  the  cases  at  law  and  in 
equity  together,  is  on  the  side  of  the  principle  which  I  am  laboring  to 
establish.  This  action  for  money  had  and  received  is  an  equitable 
remedy,  and  lies  generally  where  a  bill  will  lie;  decisions,  therefore, 
in  Chancery  which  recognize  the  principle  may  be  justly  held  to 
sustain  it.  The  first  case,  then,  in  order  of  time,  is  that  of  Lansdowne 
V.  Lansdowne,  reported  in  Moseley,  364,  decided  by  Lord  Chancellor 
King.  That  case  was  this :  The  second  of  four  brothers  died  seised  of 
land,  and  the  eldest  entered  upon  it.  But  the  youngest  also  claimed 
it.  They  agreed  to  leave  the  question  of  inheritance  to  one  Hughes, 
a  schoolmaster,  who  determined  against  the  eldest  brother,  on  the 
ground  that  lands  could  not  ascend.  Whereupon,  the  eldest  agreed  to 
divide  the  estate,  and  deeds  were  executed  accordingly.  Lord  King 
decreed  that  they  should  be  delivered  up  and  cancelled,  as  having 
been  obtained  by  mistake.  There  is  no  doubt  whatever  but  the 
mistake  was  one  of  law  as  to  the  legal  rights  of  the  elder  brother. 
It  is  a  case  in  point.  It  is  true  that  it  has  been  greatly  criticised. 
Moseley,  the  reporter,  has  been  charged  with  inaccuracy,  and  was  very 
much  in  disfavor  with  Lord  ]\Iaxsfield.  Indeed,  it  is  said  that  his 
Lordship  did,  on  one  occasion,  order  his  reports  not  to  be  read  before 
him.  Yet  there  stands  the  case,  and  if  supported  by  nothing  else, 
it  is  sustained  by  its  reasonableness.  Judge  ^Iarshall,  in  referring 
to  it,  says,  that  it  cannot  be  wholly  disregarded. 

The  case  of  Bize  v.  Dickason  was  decided  by  Lord  Maxsfteld  in 
the  Court  of  King's  Bench.  The  judgment  of  the  court  was  delivered 
as  follows :  "The  rule  has  always  been,  that  if  a  man  has  actually 
paid  what  the  law  would  not  have  compelled  him  to  pay,  but  what  in 
equity  and  conscience  he  ought,  he  cannot  recover  it  back  again  in  an 
action  for  money  had  and  received.     So,  where  a  man  has  paid  a  debt 


374  CULBREATII  V.  CULBREATH.  [bOOK    II. 

which  would  otherwise  have  been  barred  by  the  Statute  of  Limitations, 
or  a  debt  contracted  during  his  infancy,,  which  in  justice  he  ought  to 
discharge,  though  the  law  would  not  have  compelled  the  payment, 
yet,  the  money  being  paid,  it  will  not  oblige  the  payee  to  refund  it ; 
but  where  money  is  paid  under  a  mistake,  which  there  was  no  ground 
to  claim  in  conscience,  th«  party  may  recover  it  back  again  in  this 
kind  of  action."     1  T.  R.  285. 

This  authority  is  incontrovertible,  and  has  not  been  controverted. 
Thu  case  made  shows  a  mistake  of  law.  The  mistake  spoken  of  by 
Lord  Mansfield  could  not  have  been  a  mistake  of  facts,  becajise  the 
case  exhibits  no  mistake  of  facts,  but  does  exhibit  a  mistake  of  the  law. 

The  principle  was  sustained  by  a  decree  in  Bingham  v.  Bingham, 
1  Ves.  126.  There  the  bill  was  filed  on  the  ground  of  a  mistake  in  law. 
The  Master  of  the  Rolls  said,  "Though  no  fraud  appeared,  and  the 
defendant  apprehended  he  had  a  right,  yet  it  was  a  plain  mistake, 
such  as  the  court  was  warranted  to  relieve  against,  and  not  to  suffer 
the  defendant  to  run  away  with  the  money  in  consideration  of  the 
sale  of  an  estate  to  which  he  had  no  right."  See  the  note  to  this  case 
in  Belt's  Supplement,  79,  which  shows  the  mistake  to  have  been  one 
of  law.  Also  recognized  in  Turner  v.  Turner,  2  Ch.  R.  154;  in 
Leonard  v.  Leonard,  Ball  &  B.  171,  by  Lord  Manners;  by  Lord 
Thurlow,  in  Jones  v.  Morgan,  1  Bro.  C.  C.  219 ;  and  by  Lord  Eldon, 
in  Stockly  v.  Stockly,  1  Ves.  &  Bea.  23,  31 ;  and  in  Anchor  v.  The 
Bank  of  England,  Doug.  638. 

To  these  authorities  may  be  added  the  dicta  of  Lord  Ch.  J.  De  Grey, 
in  Farmer  v.  Arundel,  2  Black.  R.  824,  who  declared,  "That  where 
money  is  paid  by  one  man  to  another  on  a  mistake  either  of  fact  or 
of  law,  or  by  deceit,  this  action  will  certainly  lie."  Of  Lord  Kenyon, 
in  the  case  of  Chatfield  and  Paxton  (see  Chitty  on  Bills,  102),  and  of 
Ciiambre,  J.,  in  Brisbane  v.  Dacres,  5  Taunt.  157.  This  judge, 
arguing  the  point  with  great  strength,  says,  "It  seems  to  me  a  most 
dangerous  doctrine,  that  a  man  getting  possession  of  money  to  any 
extent,  in  consequence  of  another  party's  ignorance  of  the  law,  cannot 
be  called  on  to  repay  it."  He  illustrates  by  putting  the  very  case  made 
in  principle  in  tliis  record.  "Suppose,"  says  he,  "an  administrator 
pays  money  pei'  capita,  in  misapplication  of  the  effects  of  the  in- 
testate, shall  it  be  said  that  he  cannot  recover  it  back?" 

Opposed  to  this  weight  of  authority  in  England,  stand  the  two 
cases  of  Bilbie  v.  Lumley,  2  East,  469,  and  Brisbane  v.  Dacres, 
5  Taunt.  157, — in  the  latter  case  see  Ciiambre,  J.,  dissenting, — and 
the  obiter  opinion  of  Buller,  J. 

It  is  worthy  of  remark,  that  Lord  Ellenboroiigti,  who  presided  in 
Bilbie  v.  Lumley,  afterwards  in  Perrott  v.  Perrott,  14  East,  423, 
holds  language  irreconcilable  with  his  opinion  in  that  case.  In  the 
latter  case,  he  is  reported  to  say,  "]\frs.  Territ  either  mistook  the  con- 
tents of  her  will,  which  would  be  a  mistake  in  fact,  or  its  legal  opera- 


CHAP.    II.]  CULBHE.VTII   V.   CLLBKEATII.  375 

tioii.  which  would  be  a  mistake  in  hiw,  and  in  either  case  we  think  the 
mistake  annulled  the  cancellation."  Thus  it  is  manifest  that  our 
ju(l«:ment  in  this  case  is  not  without  precedent  in  the  English  books. 

'I'lu'  authorit}-  of  Bilbie  v.  Lumley  has  been  followed  in  this  country, 
by  Chancellor  Kent,  Shotwell  v.  Mundy,  1  Johns.  512;  Lyon  v.  Rich- 
mond, 2  Johns.  51 ;  G  Johns.  1G9,  170,  and  by  the  Supreme  Court,  in 
Hunt  r.  iiousmanier,  1  Pet.  1.  In  the  same  case,  however,  in  8  Wheat. 
)il5,  Ch.  J.  Marshall  says,  "Although  we  do  not  find  the  naked 
principle,  that  relief  may  be  granted  on  account  of  ignorance  of  the 
law,  asserted  in  the  books,  we  find  no  case  in  which  it  has  been  de- 
cided that  a  plain  and  acknowledged  mistake  in  law  is  beyond  the 
reach  of  equity."  The  case  in  1  Peters,  1,  was  decided,  however,  upon 
other  principles  than  that  one  now  under  discu.ssion.  The  same  may 
be  said  of  the  cases  in  Johnson's  Chancery  Reports,  above  referred  to. 
Yet  it  may  not  be  denied  but  that  the  courts  there  recognize  the  rule 
as  settled  in  Bilbie  r.  Lumley.  It  may  be  questioned  whether  the 
recognition  of  that  authority  by  the  Supreme  Court  is  worth  as  much 
as  the  opinion  of  Ch.  J.  Marshall,  intimated  so  plainly  in  the  above 
extract,  as  to  the  rule  in  Chancery.  The  leaning  of  Mr.  J.  Story,  in 
his  Commentaries  on  Equity,  is  the  same  way;  and  yet  he  says,  "It 
has  been  laid  down  as  unquestionable  doctrine,  that  if  a  party,  acting 
in  ignorance  of  a  plain  and  settled  principle  of  law,  is  induced  to 
give  up  a  portion  of  his  indisputable  property  to  another,  under  the 
name  of  a  compromise,  a  court  of  equity  will  relieve  him  from  the 
effect  of  his  mistake."     1  Story  Eq.  Jur."  §  121. 

Why  it  is  that  a  party  may  be  relieved  from  the  consequences  of  a 
mistake  of  the  law,  where  he  gives  up  his  property,  under  the  name 
of  a  compromise,  and  not  under  other  circumstances,  it  is  difficult  to 
see. 

Mistake  of  the  law  has  been  held  without  relief  in  Illinois,  3  Gilman, 
102 ;  in  Tennessee,  8  Yerg.  298 ;  in  New  Jersey,  1  Green  Ch.  1-45  ;  and 
in  Alabama,  9  Ala.  GG2  ;  and  it  nuiy  be  elsewhere,  beyond  my  time  for 
ascertainment. 

The  contrary  was  expressly  ruled  by  the  Court  of  Appeals  in  South 
Carolina,  in  Lowndes  v.  Chisolm,  2  McCord  Ch.  455,  in  1827.  This 
was  followed  by  the  great  case  before  the  same  court  in  1832,  of  Law- 
rence i\  Beaubien.  I  call  it  great,  because  of  the  affluence  of  learning 
displayed  in  the  argument  by  ^lessrs.  Holmes  and  King  on  one  side. 
and  Pettigru  and  Bailey  on  the  other,  and  because  of  the  perspicuous 
condensation  and  ability  of  the  opinion  of  'Mr.  J.  Johnson.  The 
doctrine,  in  all  its  bearings,  is  there  discussed  with  extraordinary 
power,  and  the  court  unanimously  decided  that  "A  mistake  of  law 
is  a  ground  of  relief  from  the  obligations  of  a  contract,  by  which  one 
party  acquired  nothing,  and  the  other  neither  ])arted  with  any  right 
nor  suffered  any  loss,  and  which,  r.r  (rquo  ei  bono,  ought  not  to  be 
binding;  and  that  it  makes  no  dilference  that  the  parties  were  fully 


376  MANSFIELD    V.    LYNCH    AND    WIFE.  [BOOK    II. 

and  correctly  informed  of  the  facts,  and  the  mistake  as  to  the  law 
was  reciprocal;  but  there  must  be  evidence  of  a  palpable  mistake, 
and  not  mere  ignorance  of  the  law."  The  case  of  Lawrence  v.  Beau- 
bien  was  reviewed  in  1833,  by  the  Court  of  Appeals,  in  Executors  of 
Hopkins  v.  Mazyck  and  others,  and  its  doctrines  affirmed,  1  Hill  Ch. 
243.  So  that  in  South  Carolina  the  question  is  definitely  settled. 
So,  also,  in  Massachusetts,  in  the  same  way.  See  May  v.  Coffin, 
4  Mass.  343;  Warder  v.  Tucker,  7  Mass.  452;  Freeman  v.  Boynton, 
7  Mass.  488.    See,  also.  Haven  v.  Foster,  9  Pick.  112. 

The  writers  on  the  civil  law  are  divided  as  to  the  question  whether 
money  paid  under  a  mistake  of  the  law  is  liable  to  repetition. 
Vinnius  and  D'Aguesseau  hold  the  affirmative;  so  Sir  W.  D.  Evans. 
The  argument  of  the  great  French  Chancellor,  D'Aguesseau,  is,  to 
my  mind,  unanswerable.  3  Ev.  Poth.  App.  308.^  Pothier  and  Heinec- 
cius  maintain  the  negative;  and  it  is  said  that  the  text  of  the  Eoman 
Law  is  with  them.  See  Eogers  v.  Atkinson.  1  Kelly,  35,  36 ;  Collier  v. 
Lanier,  1  Kelly,  338. 

Let  the  judgment  of  the  court  below  be  reversed.^ 


MANSFIELD,  ADMINISTRATOR  v.   LYNCH  AND  WIFE. 

Supreme  Court  of  Errors  of  Connecticut,  1890. 

[59   Connecticut,  330.] 

Action  by  the  plaintiff  as  administrator  de  bonis  non  of  the  estate 
of  Dennis  McLaughlin,  to  recover  of  Ann  Lynch,  one  of  the  defendants 
and  wife  of  the  other  defendant,  a  sum  of  money  paid  to  her  under  a 
mistake  by  the  original  administrator  of  the  estate;  brought  to  the 
City  Court  of  the  city  of  New  Haven,  and  heard  before  Pickett,  J. 

'The  controversy  in  France  was  settled  in  favor  of  D'Aguesseau.  See 
Touillier,  Droit  Civil  (5th  ed.)  vol.  11,  §63,  p.  79;  Zachariii,  Franzos.  Civil- 
drecht   (Gth  ed.)   vol.  2,  §  442.— Ed. 

^The  distinction  between  ignorance  and  mistake  of  law  still  obtains  in 
South  Carolina  and  Georgia.  Lawrence  f.  Beaiibien  (1831)  2  Bailey,  623; 
Hutton  V.  Edgerton  (1875)  6  S.  C.  485,  but  compare  Cunningham  v.  Cunning- 
ham (1883)  20  S.  C.  317;  Adams  v.  Guerard  (1800)  29  Ga.  651,  673;  Bohler  v. 
Vcrdery  (1893)  92  Ga.  715.  And  see  Georgia  Code,  §  3978.  The  distinction 
in  Lawrence  v.  Beaubien,  supra,  and  in  the  principal  ease  was  referred  to 
approvingly  in  the  opinion  of  Senator  Paige  in  Champlin  v.  Laytin  (1837) 
18  Wend.  407,  424:  but  the  doctrine  was  squarely  rejected  in  Jacobs  v.  TSIorange 
(1871)  47  N.  Y.  57,  in  wiiich  an  attorney's  mistake  of  the  law  was  held  to  be 
no  excuse. 

The  doctrine  of  tlic  principal  case  would  seem  to  be  confined  to  the  juris- 
diction of   South   Cardlina   and  Georgia. — Ed. 


CHAP.    II.]  MANSFIELD    V.    LYNCH    AND    WIFE,  377 

Facts  found  and  judgment  rendered  for  the  plaintiff  against  the  de- 
fendant Ann  Lynch,  and  appealed  by  her.  The  case  is  fully  stated 
in  the  opinion. 

Torrance,  J.    The  record  in  this  case  discloses  the  following  facts : 

On  the  first  of  May,  1888,  one  McLaughlin  died  intestate,  and  in 
fact  insolvent,  owing  the  defendant  Ann  Lynch  four  hundred  dollars 
upon  a  promissory  note.  On  May  14th  of  that  year  one  Bradley  was 
appointed  administrator  upon  McLaughlin's  estate.  The  court  of 
probate  limited  a  time  for  the  presentation  of  claims,  and  within  the 
time  all  the  claims  finally  allowed  against  the  estate,  amounting  to 
$1,696.44,  were  presented  to  said  Bradley. 

Of  the  claims  so  presented  Bradley  allowed  some  and  disallowed 
others.  Among  the  claims  of  general  creditors  so  allowed  (amounting 
in  all  to  $705.14),  was  that  of  the  defendant  upon  said  note,  amount- 
ing with  interest  to  $434.87.  The  claims  disallowed,  amounting  to 
$991.30,  were  in  fact  valid  claims  against  the  estate,  but  none  of  them 
were  evidenced  by  any  writing  signed  by  the  deceased,  and  Bradley 
believed  they  were  not  valid  claims  on  that  account.  He  alsohon^ 
estly  but  erroneously;  beli^ve^  that  be^  terJ:  b^ir  ac^vtsed"i3y~tlre~jH4ge 
of  probate  to  disallow  all  claims  presented  against  the  estate_not 
evidenced  by  a  writing  signed  by  the  deceased,  and_supposed  that  one 
of  the^claims^was^rarnrd  byTlTe  statute  of  limitations. 

On  these  grounds  he  disallowed  these  claims  and  gave  the  parties 
notice  of  the  disallowance.  After  the  time  limited  for  presenting 
claims  had  expired,  Bradley,  acting  under  the  belief  that  the  disallowed 
claims  were  no  longer  claims  that  could  be  collected  out  of  the  estate, 
and  believing_that  this  being  so,  the  estate  was  solvent,  paid  the  de- 
fendant's olaimnri'uli,  and  tooin;he  note  into  his  possess  louTon^  the 
l9th~of-J}£cenibeivJ]8B^lT--  in  so  believing  and-actingTTe^as  honestly 
mistaken,  as  the  court  finds,  both  as  to  the  matters  of  fact  and  as  to  the 
matters  of  law. 

Afterwards,  in  May.  1889,  certain  creditors  whose  claims  had  been 
so  disallowed  brought  suit  against  Bradley,  and  thereupon,  by  the 
advice  of  counsel,  he  represented  to  the  court  of  probate  that  the 
estate  was  insolvent,  and  asked  that  commissioners  be  appointed  to 
receive  and  examine  all  the  claims  presented.  Thereupon,  in  May, 
1889,  the  court  adjudged  the  estate  to  be  insolvent  and  appointed 
commissioners,  to  whom  Bradley  in  due  time  presented  all  the  claims 
against  the  estate,  including  those  allowed  and  paid  as  well  as  those 
disallowed  by  him ;  all  of  which  the  commissioners  allowed,  and  re- 
ported their  doings  to  the  court  on  the  28th  of  July,  1889,  which  re- 
port was  duly  accepted,  and  no  appeal  has  been  taken  therefrom.  In 
the  meantime,  on  July  1st,  1889,  Bradley  died,  and  on  August  2d, 
1889,  the  plaintiff  was  duly  appointed  and  qualified  as  administrator 
de  bonis  non  of  the  McLaughlin  estate. 

The  estate  could  at  no  time  in  fact  pay  to  the  general  creditors  more 


378  MANSFIELD    i\    LYNCH    AND    WIFE.  [BOOK    II. 

than  31  7-10  per  cent,  on  the  dollar,  which  was  the  percentage  finally 
found  due  and  ordered  to  be  paid  by  the  court. 

Before  the  present  suit  was  brought  the  plaintiff  demanded  of  the 
defQndanF"$2tt0rre7' which  was  the  amolfnri)aid  to  her  by  Bradley 
ov(ii_anii  _above  the  allowed  percentage.  TliissTie  refused  to  pay,  and 
thereupon  this  suit  was  brought.  The^idefendant  received  the  amount 
paid  to  her  by  Bradley  in  good  faith,  believing  the  same  to  be  justly 
due,  and  she  had  no  actual  knowledge  of  the  mistakes  on  the  part  of 
Bradley,  or  of  an}'  of  the  doings  of  the  commissioners  or  of  the  court 
of  probate,  before  the  date  of  this  suit,  although  public  notice 
thereof  was  given  according  to  law. 

The  money  so  paid  to  her  was  by  her  forthwith  deposited  in  her 
own  name  in  a  savings  banks,  where  it  has  ever  since  remained,  and 
is  a  part  of  the  money  attached  in  this  suit. 

On  these  facts  the  court  below  rendered  Judgment  that  the  plaintiff 
recover  of  the  defendant  the  $290.18,  with  interest  from  December 
18th,  1888,  when  it  was  paid  to  her.  Whether,  upon  the  facts  found, 
the  court  erred  in  so  deciding,  is  the  general  question  presented  for 
our  consideration. 

From  the  record  it  is  evident  that,  in  fact  and  in  law,  it  was  the 
duty  of  the  administrator  to  pay,  and  the  right  of  the  defendant  to 
receive,  only  $13-1.69 ;  that  the  administrator  by  mistake  paid  her 
$290.18  more  than  she  was  entitled  to  receive;  and  that  the  loss,  if 
the  over-payment  cannot  be  recovered  from  the  defendant,  must  fall, 
either  upon  Bradley's  estate  or  upon  the  creditors  of  the  McLaughlin 
estate.  ISTow,  whatever  view  may  be  taken  of  Bradley's  action  in 
making  the  over-payment,  it  seems  unjust  that  the  loss  should  fall 
upon  the  creditors,  and  if  Bradley  acted  in  good  faith  in  making  it, 
and  did  it  under  a  mistaken  view  of  the  law  or  of  the  facts,  or  both, 
it  seems  hard  that  the  loss  should  fall  on  his  estate  or  upon  his  bonds- 
man. 

On  the  other  hand,  if  the  defendant  is  compelled  to  repay  this 
amount,  she  is  no  worse  off  than  she  would  have  been  if  no  mistake 
had  been  made.  She  retains  her  pro  rata  share  of  the  assets,  and  is 
not  legally  harmed,  for  she  thus  gets  all  the  law  would  in  any  event 
allow  her  out  of  the  then  known  assets  of  the  McLaughlin  estate,  and 
she  still  holds  a  valid  claim  against  the  estate  for  the  balance  due 
her.  Viewed  in  this  light,  it  would  seem  as  if  the  general  result 
arrived  at  in  the  judgment  of  the  court  below  is  fair  and  equitable, 
and  ought  not  to  be  disturbed  unless  the  attainment  of  such  a 
result  in  a  ease  like  the  present  is  forbidden  by  some  stubborn  rule  or 
rules  of  law. 

The  defendant  claims  that  the  judgment  Ijclow  is  erroneous  on 
two  grounds:  first,  because  on  the  facts  found  Bradley  himself  in 
his  lifetime  had  no  cause  of  action  against  the  defendant;  and 
second,  if  he  had,  still  the  present  plaintiff  as  administrator  de  bonis 


CHAP.  II.]  MANSFIELD    V.    LYNCH    AM)    WIFE.  379 

non  cannot  recover  as  he  now  sleeks  to  do  upon  that  cause  of  action. 
We  will  examine  these  points  in  their  order. 

It  is  claimed  that  Bradley  had  no  cause  of  action  because  his  mis- 
take was  one  of  law  and  not  of  fact,  and  because  he  was  guilty  of 
such  negligence  and  laches  towards  the  defendant  that  no  court, 
either  of  law  or  of  equity,  would  have  aided  him  to  recover  the  over- 
payment. 

Bradley  paid  the  defendant's  claim  in  the  honest  belief  that  the 
estate  was  solvent.  But  for  this  belief  he  would  not  have  paid  it  in 
full.  It  would  seem  from  the  finding  that  this  belief  arose  partly 
from  ignorance  of  law,  and  partly  from  what  he  mistakenly  supposed 
to  be  the  advice  given  him  by  the  probate  judge,  as  to  the  validity  of 
certain  claims  presented  against  the  estate.  He  also  supposed  that 
one  of  the  claims  disallowed  was  barred  by  the  statute  of  limitations. 
It  is  perhaps  not  clear  from  the  finding  whether  the  court  below  re- 
garded the  mistake  which  Bradley  made  in  supposing  the  estate 
to  be  solvent  as  the  result  of  a  mistaken  view  of  law  or  of  fact, 
or  of  both  combined,  nor  is  the  settlement  of  this  question  very 
material. 

If  we  concede  what  the  defendant  claims,  that  the  over-payment 
was  the  result  of  a  mistake  of  law  with  full  knowledge  of  all  the 
facts,  still  we  think,  even  then,  that  Bradley  upon  the  facts  found 
would  if  living  have  a  right  to  recover  the  over-payment,  upon  the 
principles  settled  by  this  court  in  the  ca?e  of  Northrop  r.  Graves, 
19  Conn.  548.  In  that  case  the  husband  of  a  legatee,  as  the  result 
of  a  mistaken  view  of  the  law  as  applied  to  the  construction  of  a  will 
by  the  executors,  was  paid  a  sum  of  money  to  which  by  law  he  was 
not  entitled.  In  the  case  at  bar  the  defendant,  as  the  result  of  a 
mistaken  view  of  the  law  as  applied  in  the  disallowance  of  claims 
against  an  estate  by  the  administrator,  has  been  paid  a  sum  of  money 
to  which  she  was  not  by  law  entitled  out  of  the  known  assets  of 
McLaughlin's  estate.  It  is  true  that  in  Northrop  v.  Graves  the  de- 
fendant, at  the  time  the  money  was  paid,  knew  it  was  not  due  under 
the  will,  and  that  this  knowledge  was  an  element  that  entered  into 
the  decision  of  that  case,  but  it  was  by  no  means  the  controlling  ele- 
ment. 

The  court  in  that  case  said :  "We  mean  distinctly  to  assert  that  when 
money  is  paid  by  one  under  a  mistake  of  his  rights  and  his  duty, 
a7id  which  he  was  under  no  legal  or  moral  obligation  to  pay.  and 
which  the  recipient  has  no  right  in  good  conscience  to  retain,  it 
may  be  recovered  back  in  an  action  of  indebitatus  assumpsit,  whether 
the  mistake  be  one  of  law  or  fact ;  and  this  we  insist  may  be  done  both 
upon  the  principles  of  Christian  morals  and  the  common  law." 

Here  are  two,  and  only  two,  conditions  laid  down  to  entitle  a  plain- 
tift'  in  such  cases  to  recover.  First,  the  money  must  be  paid  by  one 
under  a  mistake  of  his  rights  and  his  duty,  and  be  such  as  he  is 


380  MANSFIELD    C.    LYXCII    AND    WIFE.  [bOOK    II. 

under  no  moral  or  legal  obligation  to  pay.  Second,  the  recipient  of 
the  money  must  have  no  "right  in  good  conscience"  to  retain  it. 

In  the  case  at  bar  we  think  the  first  condition  is  fulfilled.  Bradley 
was  not  only  under  no  moral  or  legal  obligation  to  make  the  over- 
payment, but  on  the  contrary  it  was  clearly  his  duty  to  retain  the 
money  so  overpaid  and  divide  it  among  the  other  general  creditors. 
This  duty  he  in  fact  violated  solely  because  of  a  mistake  of  law  or 
fact  or  both,  it  matters  not  which. 

It  is  said,  however,  that  the  second  condition  is  not  fulfilled  in  the 
case  at  bar,  because  as  the  estate  did  in  fact  owe  the  defendant  the 
whole  sum  paid,  she  has  "a  right  in  good  conscience"  to  retain  it. 
In  one  sense  it  is  true  that  the  estate  owed  the  defendant  the  amount 
overpaid,  but  it  is  not  in  any  legal  or  moral  sense  true  that  it  was 
the  duty  of  the  administrator  to  pay,  or  the  right  of  the  defendant 
to  receive,  her  claim  in  full  from  the  then  known  assets  of  the  estate. 
Her  right  was  only  to  receive  her  pro  rata  share  with  the  other  gen- 
eral creditors,  and  the  unpaid  balance  still  remained  a  claim  in  her 
favor  against  the  estate.  If  she  gets  more  than  this  it  must  be  at 
the  expense  of  the  other  general  creditors  or  of  the  administrator. 
She  did  in  fact  get  more  than  she  was  entitled  to  solely  in  consequence 
of  an  honest  mistake.  It  is  true  that  when  the  overpayment  was 
made  she  had  no  knowledge  of  the  condition  of  the  estate  or  of  the 
mistakes  of  Bradley,  but  such  knowledge  on  her  part  is  not  made  one 
of  the  conditions  of  recovery  in  the  case  cited,  and  after  she  obtained 
such  knowledge  she  still  refused  to  make  the  repayment. 

Can  it  then  with  reason  be  said  she  has  "a  right  in  good  conscience" 
to  retain  money  which  rightfully  belongs  to  the  estate,  to  which 
she  is  neither  morally  nor  legally  entitled,  and  which  she  obtained 
solely  in  consequence  of  an  honest  mistake  which  wrought  her  no 
harm  whatever?  Whatever  meaning  may  be  given  to  the  somewhat 
indefinite  phrase,  "right  in  good  conscience,"  we  think  it  clear  that 
the  defendant  had  no  such  right  as  against  Bradley  under  the  cir- 
cumstances to  retain  the  overpayment,  and  this  fulfills  the  second  coii- 
dition. 

We  are  aware  that  upon  the  general  question  whether,  when  all  the 
facts  are  known,  or  may  with  ordinary  diligence  be  known,  money  paid 
under  a  mistake  of  law  may  be  recovered  back,  the  authorities  are 
in  direct  conflict,  but  since  the  decision  of  the  case  of  ISTorthrop  v. 
Graves,  supra,  there  can  be  no  doubt  as  to  the  position  of  this  court 
upon  this  question  in  a  case  like  the  present.  It  is  unnecessary  there- 
fore to  cite  the  decisions  of  other  states  upon  the  question,  but  if  it 
were  many  such  authorities  might  be  found.  Such  for  instance  are 
the  cases  of  Culbreath  v.  Culbreath,  7  Geo.  64;  Stevens  v.  Goodsell, 
3  Met.  34;  Eogers  v.  Weaver,  5  Hammond  (Ohio),  536;  Beatty  v. 
Duficf,  11  Louis.  Ann.  74. 

From  the  case  of  Culbreath  v.  Culbreath,  here  cited,  which  was 


CHAP.  II.]  MAXSFIELD    V.    LYNCH    AXD    WIFE.  381 

decided  in  1840,  a  month  or  two  after  our  own  case  of  Xorthrop  v. 
Graves,  we  quote  the  following  (p.  67)  :  "The  question  is,  can  a  party 
recover  back  money  paid  with  a  knowledge  of  all  the  facts,  through 
mistake  of  the  law?  We  are  fully  aware  that  the  authorities  upon  this 
question  are  in  conflict,  as  well  in  England  as  in  this  country.  Great 
names  and  courts  of  eminent  authority  are  arrayed  on  either  side. 
It  is  not  one  of  those  questions  upon  which  the  mind  promptly  and 
satisfactorily  arrives  at  a  conclusion.  This  is  true  in  reference  both 
to  principle  and  authority.  ...  I  think,  and  I  shall  try  to 
prove,  that  the  weight  of  authority  is  with  us.  If  it  were  not  so — if 
authorities  were  balanced — we  feel  justified  in  kicking  the  beam  and 
ruling  according  to  that  naked  and  changeless  equity  which  forbids 
that  one  man  should  retain  the  money  of  his  neighbor  for  which  he  paid 
nothing  and  for  which  his  neighbor  received  nothing;  an  equity 
which  is  natural,  which  savages  understand,  which  cultivated  reason 
approves,  and  which  Christianity  not  only  sanctions  but  in  a  thousand 
forms  has  ordained." 

In  the  case  of  Rogers  r.  Weaver,  supra,  the  court  say  (p.  537)  : 
"It  is  an  admitted  rule  that  where  money  has  been  paid  by  mistake  it 
may  be  recovered  back  in  this  action.  It  appears  to  us  that  the  pay- 
ment in  this  case  was  made  under  a  mistaken  understanding  of  the 
true  situation  of  the  estate.  .  .  .  We  think  it  just  and  equi- 
table, as  well  as  lawful,  to  infer  a  promise  to  repay  the  sum  received 
more  than  was  due  from  the  fact  of  its  receipt  through  mistake." 
The  same  principle  was  acted  upon  in  the  case  of  Bliss  v.  Lee,  17  Pick. 
83. 

But  it  is  further  said  that  Bradley  knew  all  the  facts  and  was 
guilty  of  gross  negligence  and  laches  in  this  matter  towards  the  de- 
fendant, and  that  on  these  grounds  he  had  no  cause  of  action.  But 
it  nowhere  appears  that  the  defendant  has  been  in  any  way  harmed 
or  injured  by  the  claimed  negligence  or  laches  of  Bradley.  She  has 
not  changed  her  position  for  the  worse  on  that  account.  She  has  her 
pro  rata  share  of  the  assets  now  in  her  hands,  and  still  has  a  claim  for 
the  unpaid  balance,  even  if  she  is  compelled  to  repay  the  amount 
overpaid.  If  she  has  given  up  her  note  she  can  undoubtedly  easily 
get  it  back,  and  she  has  in  place  of  it  the  proved  and  allowed  claim 
based  upon  it.  We  fail  to  see  where  she  has  been  legally  harmed  by 
Bradley's  negligence  or  laches.^ 

Where  money  is  paid  under  a  mistake  of  fact,  it  is  no  defence  to  an 
action  brought  to  recover  it  that  the  mistake  arose  through  the  plain- 
tiff's negligence,  if  such  negligence  caused  the  defendant  no  harm. 
Appleton  Bank  v.  McGilvray,  4  Gray.  518;  Kingston  Bank  v.  Eltinge, 

'The  balance  of  the  case  is  important  on  the  question  of  neglisrence  or 
laches  as  a  bar  to  recovery  and  sliould  be  considered  in  connection  with  this 
headinii.  jicsf. — Ed. 


382  MANSFIELD    V.    LYNCH    AND    WIFE.  [BOOK    II. 

40  N.  York,  391.     We  think  the  same  principle  shoukl  appl}'  in  a 
case  like  the  present,  even  where  the  mistake  is  one  of  law. 

We  also  think  that  if  the  law  is  as  laid  down  in  Northrop  v.  Graves 
as  to  payments  of  money  made  by  mistake  of  law  by  a  party  acting 
in  his  own  right,  much  more  ought  the  law  to  be  so  held  in  a  case 
where  the  party  making  the  payment  acts  in  some  fiduciary  capacity 
as  the  agent  of  others. 

We  hold  then  that  Bradley,  if  living,  would  upon  the  facts  found  be 
entitled  to  recover  from  the  defendant  the  amount  overpaid.  The 
next  question  is  whether  the  present  plaintiff  is  entitled  to  recover. 

If  we  are  right  in  our  conclusion  that  Bradley,  if  living,  might 
on  the  facts  found  recover  from  the  defendant  the  overpayment, 
then  upon  principle  we  see  no  good  reason  why  the  plaintiff  may  not 
recover  in  this  action. 

It  is  true  that  the  doctrine  of  the  common  law  is,  that  between  the 
administrator  and  the  administrator  de  bo7iis  non  there  is  little  or 
no  privity,  and  that  to  the  latter  is  committed  only  the  administra- 
tion of  the  goods,  chattels  and  credits  of  the  deceased  which  have  not 
been  administered.  It  may  also  be  true  perhaps  that  if  Bradley's 
estate  had  made  good  the  overpayment  to  the  plaintiff,  Bradley's 
representatives  alone  would  in  that  case  have  had  the  right  to  bring 
this  suit,  but,  notwithstanding  these  and  other  reasons  that  might 
be  urged,  we  think  the  plaintiff  can  maintain  this  action. 

Bradley  parted  with  certain  assets  of  the  estate  to  the  defendant 
by  an  act  which,  under  the  facts  found,  gave  the  defendant  no  right 
to  retain  them  as  against  Bradley  acting  as  administrator.  After 
the  overpayment  the  money  overpaid  still  remained  assets  of  the 
estate,  and  it  was  Bradley's  duty  to  recover  it  back  for  the  benefit  of 
the  estate  as  soon  as  he  knew  that  the  estate  was  insolvent  in  fact. 
After  Bradley's  death  the  plaintiff  became  the  sole  representative  of 
the  estate,  the  trustee  of  all  persons  having  an  interest  in  it.  Wiggin 
V.  Swett,  6  Met.  194.  It  was  his  duty  to  take  charge  of  and  admin- 
ister all  assets  of  the  estate  of  the  deceased  in  the  hands  of  the  ad- 
ministrator at  his  decease,  or  in  the  hands  of  third  persons,  not  ad- 
ministered upon.  Bradley  was,  as  to  the  cause  of  action  which  he  had 
against  the  defendant  for  the  overpayment,  a  trustee  for  the  estate 
and  the  other  general  creditors.  Had  he  in  his  lifetime  instituted  a 
suit  to  recover  the  overpayment  and  then  died,  the  plaintiff  by  our 
statute  (§  569)  might  have  entered  and  prosecuted  such  suit  to  final 
judgment.  We  think,  in  a  case  like  the  present,  he  can  as  well  in- 
stitute a  suit  himself  as  to  prosecute  one  brought  by  his  predecessor. 

Whether  the  suit  is  brought  by  the  administrator  de  horns  non,  or 
by  Bradley's  representatives,  can  make  little  or  no  difference  to  the 
defendant.  In  the  one  case  she  pays  back  to  the  estate  directly,  and 
in  the  other  indirectly,  the  amount  overpaid.  In  either  case  she 
pays  it  back.    That  is  the  object  to  be  accomplished  by  either  method. 


rilAP.  II.]  MAXSFIELD    V.    LYNCH    AND    WIFE.  383 

and  we  think  the  present  method  is  the  simi^lcst  and  cheapest  for 
all  concerned  and  was  properly  adopted. 

We  know  of  no  case  and  have  been  referred  to  none  wherein  it  is  d(!- 
eided  that  the  administrator  may  not  recover  in  a  case  like  the 
present.  On  the  other  hand  in  Stevens  v.  Goodsell,  supra,  the  ad- 
ministrator de  bonis  non  was  allowed  to  recover  in  a  case  very  similar 
to  this.  See  also  Bliss  v.  Lee,  IT  Pick,  supra,  where  the  executor  was 
allowed  to  recover  a  payment  made  to  a  creditor  beyond  his  pro  rata 
share  by  an  executor  de  son  tort. 

There  is  no  error  in  the  judgment  of  the  court  below. ^ 

'Connecticut  has  consistently  allowed  recovery  in  the  teeth  of  the  maxim. 
See  the  following  earlier  cases:  Northrop  v.  Graves  (1849)  19  Conn.  548 
(a   leading  case);   Stedwell  v.  Anderson    (1851)    21  Conn.   139. 

"In  Kentucky  the  question  has  been  presented  in  a  variety  of  cases. 
Perhaps  one  of  the  most  interesting  is  Mt\Murtry  r.  Kentucky  Central  Railway 
Co.  (1884)  84  Ky.  462.  The  railway  company,  having  paid  a  judgment  in  an 
action  for  personal  injuries,  with  interest  from  the  date  of  its  rendition, 
brought  suit  to  recover  the  amount  paid  as  interest  on  the  ground  that  it  had 
been  paid  under  a  mistake,  the  statute  providing  that  judgments  for  personal 
injuries,  inier  alia,  should  not  bear  interest.  In  giving  judgment  for  the 
plaintiff,  the  court  emphasized  the  fact  that  there  had  been  no  compromise  or 
choice  of  courses  by  the  company  in  making  the  payment. 

"  'When  the  parties,'  says  Hoi.t,  J.,  'regard  a  question  of  either  law  or 
fact  as  doubtful,  and  to  avoid  litigation,  and  by  way  of  compromise,  payment 
is  made,  then  no  recovery  can  be  had ;  but  in  the  case  now  before  us  no  question 
was  raised  at  the  time  as  to  the  right  of  the  claimant  to  interest.    .    .    .' 

"In  other  cases  in  the  same  jurisdiction  recoverv  has  been  permitted  of  meter 
rent  paid  by  a  consumer  to  a  gas  company,  which,  under  a  proper  construction 
of  the  contract  between  the  gas  company  and  the  city,  the  company  had  no 
right  to  charge  (Capital  Gas  Co.  v.  Gaines  (1899)  49  S.  W.  462)  ;  of  a 
liquor  license  fee  paid  under  an  invalid  ordinance  ( Bruner  r.  Stanton  (1897) 
43  S.  W.  411)  ;  of  money  paid  under  an  unconstitutional  statute  (Board  of 
Trustees  v.  Board  of  Education  (1903)  75  S.  W.  225):  of  taxes  illegally 
assessed  under  a  mistake  of  laAv  (City  of  Louisville  i'.  Henning  (1866)  1  Bush, 
381).  As  to  taxes,  however,  it  should  be  noted  that  it  has  been  held  (Louis- 
ville &  N.  R.  Co.  V.  Commonwealth  (1890)  89  Ky.  531)  that  when  payment 
cart  be  coerced  only  by  suit,  then  if  payment  is  made  without  suit  no  recovery 
will  be  allowed.  This  seems  entirely  to  disregard  the  question  of  mistake, 
and  erroneously  to  assume  that  the  only  i>ossible  ground  of  recovery  is  that 
of  payment  under  compulsion  of  duress." 

"In  at  least  four  jurisdictions — California.  North  Dakota,  South  Dakota 
and  Georgia — the  rule  has  been  modified  by  legislative  enactment.  In  the  first 
three,  the  statute,  after  providing  that  apparent  consent  is  not  free  when 
obtained  through  mistake,  and  that  mistake  may  be  either  of  fact  or  of  law, 
defines  the  latter  as 

"'(1)  A  misapprehension  of  tlie  law  by  ;ill  parlies,  all  supposing  that 
they  knew  and  understood  it,  and  all  making  substantially  the  same  mis- 
take as  to  the  law:  or  (2)  a  misapiirclionsion  of  the  law  by  one  party,  of 
wIiJ!-]!    til?    others    arc    aware    at    the    time  of    contracting,  but  which  they 


384  HAVEN   V.   FOSTEK.  [BOOK   II. 

HAVEN  V.  FOSTER. 

Supreme  Judicial  Court  of  Massachusetts,  1829. 

[9  Piclering,  113.] 

Assumpsit  for  money  had  and  received,  and  money  paid,  submitted 
on  a  case  stated.  In  1819,  Andrew  Craigie,  of  Massachusetts,  died 
intestate  in  that  state,  seised  of  hinds  there  and  in  the  state  of  New 
York,  and  leaving  as  heirs  the  wife  of  the  plaintiff,  a  niece,  and  the 
defendant  and  two  brothers,  nephews.  The  widow  took  out  letters 
of  administration  in  this  state.  No  letters  were  taken  out  in  New 
York.  In  1831  the  plaintiff  and  his  wife  and  the  three  Fosters  sold 
the  New  York  land  to  one  Tufts  for  twenty-four  thousand  five 
hundred  and  forty  dollars,  he  executing  bonds  for  the  purchase  money 
payable  equally  to  the  four  grantors,  and  secured  by  a  mortgage  on  the 
land  to  them  in  undivided  fourth  parts.  In  1834,  the  bonds  were 
paid,  one  thousand  eight  hundred  and  seventy-five  dollars  being 
deducted  from  each  of  the  amounts  payable  to  the  obligees,  in  order 
that  Tufts  might  pay  the  sum  of  seven  thousand  five  hundred 
dollars  to  one  Lee,  due  from  Craigie,  and  for  which  the  lands  sold 

do  not  rectify.'  Calif.  Civil  Code,  §  1578;  N.  Dak.  Civil  Code,  §  3854;  S.  Dak. 
Civil  Code,  §   1207;   Georgia  Code,  §  3978. 

"The  mistake  defined  in  the  second  clause  involves  an  element  of  fraud 
which  afTords  a  separate  and  obvious  ground  for  relief.  But  the  definition 
in  the  first  clause  is  of  a  mistake  in  the  true  sense,  and  is  remarkable  in  that 
by  its  terms  relief  is  confined  to  cases  in  which  the  mistake  is  common  to  all 
parties.  This  is  a  distinction  which  has  found  some  favor  elsewhere."  ilr. 
Woodward  in  5  Columbia  L.  R.  368-371. 

In  regard  to  the  doctrine  of  the  principal  case,  other  than  the  question 
of  mistake  of  law,  compare  the  following  from  8  Viner's  Ab.  423,  PI.  35: 
"Bill  by  an  executor  against  a  legatee  to  refund  a  legacy  voluntarily  paid  him 
by  the  executor,  the  assets  falling  short  to  satisfy  the  testator's  debt.  Decreed 
that  the  defendant  should  refund  to  the  plaintifl',  and  that  an  executor  may 
bring  a  bill  against  a  legatee  to  refund  a  legacy  voluntarily  paid,  as  well  as 
a  creditor ;  for  the  executor  paying  a  debt  of  the  testator  out  of  his  own  pocket, 
stands  in  the  place  of  the  creditor,  and  has  the  same  equity  against  a  legatee 
to  compel  him  to  refund,  contra  to  the  opinion  in  2d  Vent.  358.  Noell  v. 
Robinson,  and  2  Vent.  360;  Hodges  v.  Waddington,  per  Jekiix,  M.  R.  ;  Ms. 
Rep.  Pasch.  4  Geo.  Cane.  Davis  v.  Davis."     S.  C.  2  Eq.  Ab.  554,  pi.  13. 

And  note  the  following  cases:  Livosey  v.  Livesey  (1827)  3  Russ.  287; 
Dibbs  V.  Goren  (1849)  11  Beav.  483;  In  re  Home  (1904)  L.  R.  [1905]  Ch.  76 
(and  note  on  this  case  in  18  Harv.  L.  R.  546);  Findlay  v.  Trigg  (1887) 
83  Va.  5.39;  Beaird  v.  Wolf  (1887)  23  111.  App.  486;  Edgar  v.  Shields  (1856) 
1  Grant,  361;  Paine  v.  Drury  (1837)  19  Pick.  400;  Heard  v.  Drake  (1855) 
4  Gray,  514:  Flint  v.  Valpey  (1881)  130  Mass.  385;  Brooking  v.  Farmer's 
Bunk   (1885)    83  Ky.  431.— Ed. 


ClIAP.    II.]  HAVEN  V.   FOSTER.  385 

to  Tufts  had  been  inortgaged  as  security.  Tlie  contract  between 
Craigie  and  Lee  was  for  the  loan  progressively  of  fifteen  thousand 
dollars  for  which  said  lands  were  mortgaged.  Craigie  had  received 
four  thousand  nine  hundred  and  fifty-seven  dollars  under  the  contract, 
and  his  administratrix  two  tliousand  two  hundred  and  thirty-five 
dollars,  which,  with  interest  to  June  15,  18:^0,  made  the  seven  thousand 
five  hundred  dollars.  By  agreement  of  June  17,  1820,  the  intended 
loan  was  reduced  to  seven  thousand  five  hundred  dollars.  At  the  time 
Tufts  undertook  to  pay  this  debt  to  Lee  it  was  barred  by  the  statute  of 
limitations.  It  had  been  agreed  originally  between  the  heirs  and  the 
administratrix,  by  reason  of  certain  stock  in  the  commonwealth  belong- 
ing to  the  estate  and  received  by  the  heirs,  that  this  Lee  debt  should 
be  paid  out  of  the  proceeds  of  the  stock.  But  the  stock  remaining 
unsold  when  Tufts  proposed  to  pay  the  debt,  the  heirs  agreed  to  pay 
the  same,  the  administratrix  agreeing  that  the  payment  by  them 
should  have  the  same  effect  as  if  it  had  been  made  by  her,  there  exist- 
ing doubts  as  to  the  suflficiency  of  the  personalty  to  pay  the  debts  of 
the  estate.  Tufts  neglected  to  pay  Lee.  He  thereupon  foreclosed  his 
mortgage  and  obtained  a  decree,  which  was  satisfied  out  of  about  half 
of  the  premises.  Tufts  subsequently  paid  to  the  defendant  the  amount 
which  he  had  retained  to  discharge  Lee's  debt. 

Other  lands  in  Xew  York  were  sold  by  the  plaintiff  and  wife  and 
the  Fosters,  the  consideration  being  divided  equally.  And  all  the 
times  of  this  and  the  other  above-mentioned  transactions,  the  heirs 
were  ignorant  of  the  law  of  Xew  York  by  which  lands  descended  per 
stirpes  and  not  per  capita.  This  action  was  brought  to  recover  the 
excess  received  by  the  defendant  above  the  sum  which  he  was  entitled 
to  under  the  laws  of  New  York.^ 

The  opinion  of  the  court  was  drawn  up  by 

MoRTOx,  J.  [After  stating  some  of  the  facts.]  By  the  statute  of  dis- 
tributions of  this  State  these  heirs,  standing  in  the  same  degree  of 
relationship  to  the  intestate,  inherited  his  estate  in  equal  proportions. 
But  by  the  statute  of  Xew  York,  which  carries  the  doctrine  of  repre- 
sentation farther  than  the  law  of  this  State,  or  indeed  than  the  civil 
or  common  law,  these  heirs  inherited  per  stirpes  and  not  per  capita. 
So  that  the  estate  in  Xew  York  descended,  one-half  to  the  wife  of  the 
plaintiff,  and  the  other  half  to  the  defendant  and  his  two  brothers; 
being  one-sixth  instead  of  one-quarter  to  each. 

Of  the  provisions  and  even  existence  of  this  statute,  all  the 
heirs  were  entirely  ignorant  during  the  whole  of  the  transactions 
stated  in  the  case.  The  plaintiff,  having  discovered  the  mistake,  now 
seeks  by  this  action  to  reclaim  of  the  defendant  one-third  of  the 
amount  received  by  him  on  account  of  the  sale  of  the  Xew  York  lands, 
with  interest  from  the  time  of  its  receipt.    And  the  question  now  sub- 

^Statement  of  the  case  is  taken  from  19  American  Decisions,  353-354. — Ed. 


386  HAVEX   V.   FOSTER,  [BOOK    II. 

niitted  to  our  decision  is,  whether  he  is  entitled  to  a  repetition  of  the 
whole  or  any  part  of  tliis  amount. 

Had  the  parties  been  informed  of  their  respective  rights  under  the 
laws  of  New  York,  it  cannot  be  doubted  that  the  plaintiff  would 
have  retained  one  moiety  of  the  land  in  that  State,  or  would  have 
received  to  himself  one-half  of  the  consideration  for  which  it  was  sold. 
The  distribution  of  the  avails  of  the  sale  was  made  by  the  heirs  upon 
the  confident  though  mistaken  supposition,  that  they  were  equally  en- 
titled to  them.  They  acted  in  good  faith  upon  a  full  conviction  that 
they  were  equal  owners  of  the  estate.  It  turned  out,  however,  to  the 
surprise  of  all  of  them,  that  they  owned  the  estate  in  very  unequal 
proportions,  and  that  the  defendant  and  his  brothers  had  received  not 
only  the  price  of  their  own  estate,  but  also  the  price  of  a  part  of  the 
plaintiff's  estate. 

Equity  would  therefore  seem  to  require,  that  the  defendant  should 
restore  to  the  plaintiff  the  amount  received  for  the  plaintiff's  estate. 
It  was  received  by  mistake,  and  but  for  the  mistake  would  not  have 
come  to  the  defendant's  hands.  If  the  whole  estate  had  been  owned 
by  the  plaintiff,  and  the  defendant,  having  no  interest  in  it,  had  re- 
ceived the  whole  consideration,  the  equitable  right  of  repetition  would 
have  been  no  stronger;  it  might  have  been  more  manifest. 

The  suggestion  that  the  provisions  of  the  New  York  statute  are  in 
themselves  inequitable,  is  no  answer  to  this  view  of  the  case.  Whether 
the  law  of  descent  in  that  State  is  more  or  less  reasonable  and  just 
than  ours,  it  is  neither  our  province  nor  desire  to  inquire.  All  statute 
regulating  the  descent  and  distributions  of  intestate  estate  may  be 
considered  as  positive,  and  in  some  degree,  arbitrary  rules.  And 
when  a  person,  by  inheritance  or  purchase,  becomes  lawfully  seised  of 
any  estate  without  fraud  or  fault  on  his  part,  it  would  be  as  incon- 
sistent with  sound  ethics,  as  with  sound  law,  to  devest  him  of  it  because 
the  rule  of  law  by  which  he  held  it  was  deemed  unreasonable.  And 
if,  by  accident  or  mistake,  another  should  get  possession,  it  is  not  easy 
to  see  upon  what  principle  he  would  be  justified  in  retaining  it. 

In  the  case  at  bar,  the  division  of  the  consideration  money  was  made 
by  the  agreement  of  all  the  parties  interested.  The  defendant  received 
the  money  with  the  plaintiff's  consent.  But  it  was  an  implied,  rather 
than  express  agreement. 

The  defendant  also  received  the  money  under  a  claim  of  right.  The 
defendant  believed  himself  to  be  legally  and  equitably  entitled  to 
one-quarter  part  of  the  proceeds  of  the  sale.  And  under  this  belief  he 
claimed  it  as  being  rightfully  due  to  him,  and  the  plaintiff,  under  the 
influence  of  the  same  belief,  assented  to  the  justice  of  the  claim,  and 
agreed  to  the  equal  distribution  which  was  made. 

It  was  not  however  paid  to  the  defendant  by  way  of  compromise.  No 
controversy  existed  between  the  parties.  There  was  not  even  a  dif- 
ference of  opinion  between  them  in  relation  to  their  respective  pur- 


CIIA-P.    II.]  HAVEN   V.   FOSTER.  387 

parties  in  the  estate  before  it  was  sold,  or  to  the  apportionment  of  the 
avails  after  the  sale.  There  was  therefore  no  room  for  concession  on 
the  one  side  or  tlie  other,  and  nothing  between  them  which  could  be  the 
subject  of  com})romise. 

Nor  do  the  facts  furnish  any  ground  to  presume  that  the  plaintiff 
intended  to  grant  anything  to  the  defendant,  or  to  yield  any  of  his 
legal  rights.  Nemo  presumitur  donare.  And  we  have  no  reason  to 
believe  that  the  plaintiff  intended  to  give  away  any  part  of  his  own 
property,  or  his  wife's  inheritance. 

The  mistake  in  the  distribution  of  the  consideration  money  for 
which  the  land  was  sold,  arose  from  the  mutual  ignorance  of  the  law 
of  descents  in  New  York.  Can  this  mistake  be  corrected  and  the  plain- 
tiff be  restored  to  the  rights  which  he  had  under  this  statute? 

It  is  in  the  first  place  objected,  that  the  plaintiff's  ignorance  was 
owing  to  his  own  negligence;  that  he  shall  not  be  allowed  to  take  ad- 
vantage of  his  own  laches ;  that  what  a  man  may  learn  with  proper 
diligence,  he  shall  be  presumed  to  know;  and  that  against  mistakes 
arising  from  negligence,  even  a  court  of  equity  will  not  relieve. 

In  all  civil  and  criminal  proceedings  every  man  is  presumed  to 
know  the  law  of  the  land,  and  whenever  it  is  a  man's  duty  to  acquaint 
himself  with  facts,  he  shall  be  presumed  to  know  them.  But  this 
doctrine  does  not  apply  to  the  present  case.  It  was  not  the  duty  of  the 
plaintiff  to  know  the  laws  of  New  York,  nor  does  ignorance  of  them 
imply  negligence.  Knowledge  cannot  be  imputed  to  the  plaintiff, 
and  it  is  expressly  agreed  that  he,  as  well  as  the  defendant,  was  entirely 
ignorant  of  the  statute  of  New  York.  Besides,  it  was  as  much  the 
duty  of  the  defendant  as  of  the  plaintiff,  to  be  acquainted  with  the 
laws  of  New  York.  And  if  either  is  guilty  of  negligence,  both  are,  in 
this  respect,  in  pari  delicto. 

The  objection  that  the  title  to  real  estate  cannot  be  tried  in  this 
form  of  action,  cannot  avail  the  defendant ;  because  it  seems  to  us  very 
clear,  that  no  title  is  or  can  be  drawn  in  question,  in  the  present  case. 

The  principal  objection  to  the  plaintiff's  recovery,  and  the  one  most 
relied  upon  by  the  defendant's  counsel,  is,  that  the  payment  to  the 
defendant  was  made  through  misapprehension  of  the  law,  and  there- 
fore that  the  money  cannot  be  reclaimed. 

It  is  alleged,  that  to  allow  the  plaintiff  to  recover  in  the  present 
action,  would  be  to  disregard  the  common  presumption  of  a  knowledge 
of  the  law,  and  to  violate  the  wholesome  and  necessary  maxim  Igno- 
rantio  juris  quod  quisque  tenetur  scire,  neminem  excusai.  This  objec- 
tion has  been  strongly  urged  by  the  defendant's  counsel,  and  learnedly 
and  elaborately  discussed  by  the  counsel  on  both  sides.  It  is  believed 
that  all  the  authorities  applicable  to  the  point,  from  the  civil  as  well 
as  the  common  law,  have  been  brought  before  the  court. 

Whether  money  paid  through  ignorance  of  the  law  can  be  recovered 
back,  is  a  question  much  vexed  and  involved  in  no  inconsiderable 


388  HAVEN   V.   FOSTER.  [BOOK    II. 

perplexit3\  We  do  not  court  the  investigation  of  it,  and  before  at- 
tempting its  solution,  it  may  be  well  to  ascertain,  whether  it  is  nec- 
cessary  to  the  decision  of  the  case  before  us. 

That  a  mistake  in  fact  is  a  ground  of  repetition,  is  too  clear  and 
too  well  settled  to  require  argument  or  authority  in  its  support. 

The  misapprehension  or  ignorance  of  the  parties  to  this  suit  related 
to  a  statute  of  the  State  of  New  York.  Is  this,  in  the  present  question, 
to  be  considered  fact  or  law? 

The  existence  of  any  foreign  law  must  be  proved  by  evidence 
showing  what  it  is.  And  there  is  no  legal  presumption  that  the  law 
of  a  foreign  state  is  the  same  as  it  is  here.  2  Stark.  Ev.  (Metcalf's 
Ed.)  568;  Male  v.  Eoberts,  3  Esp.  163.  If  a  foreign  law  is  unwritten, 
it  may  be  proved  by  parol  evidence ;  but  if  written,  it  must  be  proved 
by  documentary  evidence.  Kenny  v.  Clarkson,  1  Johns.  385 ;  Frith  v. 
Sprague,  14  Mass.  455 ;  Consequa  v.  Willings,  Pet.  C.  C.  229.  The 
laws  of  other  States  in  the  union  are  in  these  respects  foreign  laws. 
Eaynham  v.  Canton,  3  Pick.  293. 

The  courts  of  this  State  are  not  presumed  to  know  the  laws  of  other 
States  or  foreign  nations,  nor  can  they  take  judicial  cognizance  of 
them,  till  they  are  legally  proved  before  them.  But  when  established 
by  legal  proof,  they  are  to  be  construed  by  the  same  rules  and  to  have 
the  same  effect  upon  all  subjects  coming  within  their  operation,  as  the 
laws  of  this  State. 

That  the  lex  loci  rei  sitce  must  govern  the  descent  of  real  estate,  is  a 
principle  of  our  law  with  which  every  one  is  presumed  to  be  ac- 
quainted. But  what  the  lex  loci  is,  the  court  can  only  learn  from 
proof  adduced  before  them.  The  parties  knew,  in  fact,  that  the  in- 
testate died  seised  of  estate  situated  in  the  State  of  New  York.  They 
must  be  presumed  to  know  that  the  distribution  of  that  estate  must 
be  governed  by  the  laws  of  New  York.  But  are  they  bound,  on  their 
peril,  to  know  what  the  provisions  of  these  laws  are?  If  the  judicial 
tribunals  are  not  presumed  to  know,  why  should  private  citizens  be? 
If  they  are  to  be  made  known  to  the  court  by  proof,  like  other  facts, 
why  should  not  ignorance  of  them  by  private  individuals  have  the 
same  effect  upon  their  acts  as  ignorance  of  other  facts?  Juris  igno- 
rantia  est,  cum  jus  nostrum  ignoramus,  and  does  not  extend  to 
foreign  laws  or  the  statutes  of  other  States. 

We  are  of  opinion,  that  in  relation  to  the  question  now  before  us, 
the  statute  of  New  York  is  to  be  considered  as  a  fact,  the  ignorance  of 
which  may  be  ground  of  repetition.  And  whether  ignorantia  legis 
furnishes  a  similar  ground  or  repetition,  either  by  the  civil  law,  the 
law  of  England,  or  the  law  of  this  Commonwealth,  it  is  not  necessary 
for  us  to  determine.  The  examination,  comparison,  and  reconciliation 
of  all  the  conflicting  dicta  and  authorities  on  this  much  discussed 
question  is  a  labor  which  we  have  neither  leisure  nor  inclination  to 
undertake. 


CHAP.    II.]  HAVEN   V.   FOSTER.  389 

In  the  view  which  we  have  taken  of  this  case,  it  appears  that  the  de- 
fendant received  a  part  of  the  consideration  for  which  the  plaintiff's 
estate  was  sold;  that  it  was  received  by  mistake;  and  that  this  mis- 
take was  in  a  matter  of  fact.  He  therefore  has  in  his  hands  money 
which  ex  ceqiio  et  bono  he  is  bound  to  repay,  and  there  is  no  principle 
of  law  which  interposes  to  prevent  the  recovery  of  it  out  of  his  hands. 

The  action  for  money  had  and  received,  which  for  its  equitable  prop- 
erties is  ever  viewed  with  favor,  is  the  proper  remedy  for  its  repetition. 
The  mode  in  which  the  payment  was  originally  secured  by  bond  and 
mortgage  forms  no  objection  to  the  recovery,  inasmuch  as  the  money 
was  in  fact  paid  before  the  action  was  commenced.  The  plaintiff's 
remedy  will  extend  to  all  the  money  actually  received  by  the  defend- 
ant beyond  his  legal  proportion  of  the  estate.  Whether  it  shall  ex- 
tend further,  is  a  question  involved  in  some  difficulty. 

The  estate  in  New  York,  at  the  decease  of  the  intestate,  was  under 
mortgage.  This  mortgage  was  satisfied  from  the  estate  itself,  and  the 
amount  thus  paid  deducted  from  the  consideration  money.  The  plain- 
tiff now  contends  that  this  incumbrance  ought  to  have  been  removed 
by  a  payment  from  the  personal  estate,  or  if  that  was  insufficient, 
from  the  real  estate  in  this  Commonwealth. 

In  the  consideration  of  this  question,  it  must  not  be  forgotten  that 
the  plaintiff  can  recover  only  what  in  equity  and  good  conscience  is 
due  to  him.  What  descended  to  the  heirs  in  New  York?  The  estate 
there,  not  free  from  all  incumbrances,  but  with  this  mortgage  upon  it. 
Did  equity  require  that  the  defendant  and  his  brothers  should  ad- 
vance three-fourths  of  the  money  to  pay  off  this  mortgage,  that  the 
plaintiff  might  have  one-half  the  estate  increased  in  value  by  this 
payment  ? 

The  mortgagee  relied  entirely  upon  his  lien  on  the  estate ;  otherwise 
he  would  have  demanded  paA-ment  of  the  administratrix,  and 
sought  a  remedy  against  her  upon  the  personal  security  of  the  in- 
testate. This  he  omitted  to  do  until  the  claim  was  barred  by  the 
statute  of  1791,  c.  28.  The  only  sure  remedy  then  remaining  was 
upon  his  mortgage.  This  remedy  he  resorted  to,  and  obtained  from 
the  land  mortgaged  satisfaction  of  his  debt,  by  a  sale  of  part  of  it  ac- 
cording to  the  laws  of  New  York. 

It  is  true  that  before  this  claim  against  the  estate  was  barred  by  the 
statute  of  limitations,  the  heirs  agreed  with  the  administratrix  that 
the  debt  should  be  paid  out  of  the  proceeds  of  a  sale  of  certain  cor- 
porate stock.  But  the  stock  was  not  sold  so  as  to  make  the  payment, 
and  after  the  demand  was  barred  the  heirs  made  an  agreement  with 
the  purchaser  of  their  estate  in  New  York,  that  he  should  retain 
enough  of  the  consideration  which  was  then  due  to  them  to  remove 
this  incumbrance,  deducting  an  equal  amount  from  each  bond.  After 
the  deduction  of  this  amount  from  the  bonds,  the  balances  were  paid 
to  the  obligees,  and  thus  the  bonds  were  satisfied  and  discharged.    The 


390  HAVEN   V.   FOSTER.  [BOOK    II. 

effect  of  this  arrangement  by  the  heirs  was,  to  leave  the  estate  in  the 
hands  of  the  purchaser  in  tlie  same  situation  it  would  have  been  had 
it  been  sold  subject  to  this  incumbrance. 

It  must  be  presumed  that  the  heirs  stipulated  to  remove  the  in- 
cumbrance or  to  furnish  the  purchaser  with  the  means  of  doing  it.  If 
this  was  not  the  case,  they  voluntarily  agreed  to  relinquish  a  part  of 
the  purchase-money.  In  this  event  it  was  equivalent  to  a  reduction 
of  the  price  of  the  estate,  and  the  plaintiff  can  have  no  claim  to  any 
more  than  one-half  of  the  price  which  was  finally  agreed  upon  and 
actually  paid. 

If  the  heirs  agreed  to  pay  off  this  mortgage,  it  was  a  part  of  the 
agreement  that  it  should  be  paid  out  of  a  particular  fund.  As  this 
agreement  was  made  by  the  plaintiff  under  the  mistaken  supposition 
that  he  owned  but  a  quarter,  when  in  fact  he  owned  half  of  it,  he 
claims  to  be  relieved  from  its  operation.  If  the  agreement  is  invalid 
in  part,  it  must  be  so  in  the  whole.  The  plaintiff  cannot  be  released 
from  it  and  the  defendant  be  bound  by  it.  If  the  plaintiff,  with  a 
knowledge  of  his  rights,  would  not  have  agreed  to  pay  out  of  this 
fund ;  so  the  other  heirs,  with  the  same  knowledge,  would  not  have 
agreed  to  pay  at  all.  They  would  have  relied  upon  their  statute  bar. 
and  left  the  mortgagee  to  his  remedy  on  the  mortgaged  estate  and 
their  grantee  to  his  remedy  against  his  grantors  or  in  resisting  pay- 
ment of  his  bonds. 

Although  this  agreement  was  founded  in  misapprehension,  yet  as 
it  was  made  in  good  faith  and  has  been  executed,  as  the  parties  can- 
not be  restored  to  the  situation  they  were  in  when  it  was  made,  and 
as  the  effect  of  annulling  it  as  to  one  would  be  manifest  injustice  to 
the  other,  we  can  see  no  good  reason  why  both  should  not  be  bound 
by  it.^ 

Upon  a  view  of  the  whole  case,  it  is  the  opinion  of  the  court,  that  the 
plaintiff  recover  one-third  of  the  whole  amount  received  by  the  de- 
fendant on  account  of  the  sale  of  lands  in  New  York,  with  interest 
from  the  service  of  the  writ.^ 

'A  portion  of  the  opinion  not  relating  to  the  question  of  mistake  has  been 
omitted. — Ed. 

=See  also  Bentley  v.  Whittemore  (1867)  18  N.  J.  Eq.  3G6.  The  doctrine  of 
the  principal  case  is  universally  accepted  in  England  and  the  United  States. 
Leslie  v.  Baillie  (184.3)  2  Y.  &  C.  C.  C.  91;  Imperial,  &c.,  Assicuratrice 
of  Trieste  v.  Funder  (1872)  21  W.  R.  116  (where  James,  L.  J.,  said  that  a 
mistake  as  to  foreign  law  was  a  mistake  of  fact,  and  was  not  a  reason  for 
setting  aside  the  reward)  ;  Norton  v.  INlarden  (1838)  15  Me.  45,  46,  in  which 
Shepley,  J.,  says: 

"Certain  principles  in  relation  to  this  action  [of  money  had  and 
received]  seem  now  to  be  well  settled.  Money  paid  under  a  mis- 
take of  law  cannot  be  reclaimed.  Dougl.  471 ;  Bilbie  v.  Lumley,  2  East, 
469;     Stevens    v.    Lynch,     12     East,    38;     Brisbane    v.     Dacres,     5     Taunt. 


CHAP.    II.]  THE  BANK   OF   CIIILLICOTIIE    V.   DODGE.  391 

THE  BANK  OF  CHILLICOTHE  v.  DODGE. 

Supreme  Court  of  New  York,  1850. 
[8  Barbour,  233.] 

This  was  an  action  of  assumpsit.  The  declaration  contained  the 
ordinary  counts  for  nionoy  lent  and  advanced,  paid,  laid  out  and 
expended,  money  had  and  received,  an  account  stated,  and  five  special 
counts.  The  plaintiffs  were  a  body  corporate  duly  incorporated  in 
Ohio,  and  in  October,  1839,  discounted  defendant's  bill  of  exchange 

144;  Mowatt  v.  Wright,  1  Wend.  35.5.  But  a  mistake  of  a  foreign  law  is 
regarded  as  a  mistake  of  fact.  9  Pick.  112.  Nor  can  it  be  reclaimed,  when 
voluntarily  paid  with  a  knowledge  or  means  of  knowledge  in  hand,  of  the 
facts.  Martin  v.  Morgan.  1  Brod.  &  Bing.  289;  Welsh  v.  Carter,  1  Wend.  185. 
Nor  where  there  may  be  a  mistake  of  the  facts,  if  the  party  paying  has 
derived  a  substantial  benefit  from  such  payment;  because  he  is  not  then 
entitled  ex  cequo  et  bono  to  reclaim  it.  Taylor  v.  Hare,  4  B.  &  P.  262.  But 
when  paid  under  a  mistake  of  facts,  and  without  any  laches  on  the  part 
of  the  payer,  and  without  any  substantial  benefit  derived  from  it,  it  may 
be  recovered  back.  Hern  v.  Nicholls,  1  Salk.  289;  Cox  v.  Prentice,  3  M.  &  S. 
344;  Milnes  v.  Duncan,  6  B.  &  C.  G71  ;  Garland  v.  Salem  Bank,  9  Mass.  R.  408." 

Nor  does  the  rule  extend,  it  would  seem,  to  mistakes  of  private  and  special 
statutes:  Cooper  v.  Phibbs  (1807)  L.  R.  2  H.  L.  149;  Beauchamp  v.  Winn 
(1873)  L.  R.  6,  H.  L.  223;  State  i;.  Paup  (1852)  13  Ark.  129;  King  v. 
Doolittle  (1858)   1  Head,  77. 

And  see,  Pitcher  v.  Turin  Plank  Road  Co.  (1851)  10  Barb.  436;  Webb  v. 
City  Council  of  Alexandria  (1880)  33  Graft.  168;  Rogers  v.  Walsh  (1881) 
12  Neb.  28. 

It  is  interesting  to  note  that  International  Law  is  not  treated  as  foreign 
law.  "Foreign  municipal  laws  must  indeed  be  proved  as  facts,  but  it  is  not 
so  with  the  law  of  nations,"  per  Strong,  J.,  in  The  Scotia  (1871)  14  Wall, 
170,  188.     See  also  The  Paquette  Habana   (1899)    175  U.  S.  677,  700. 

In  the  instructive  case  of  Hanley  v.  Donoghue  (1885)  116  U.  S.  1,  4,  Mr. 
Justice  Gray,  speaking  for  a  unanimous  court,  said:  "No  court  is  to  be  charged 
with  the  knowledge  of  foreign  laws;  but  they  are  well  understood  to  be  facts, 
which  must,  like  other  facts,  be  proved  before  they  can  be  received  in  a  court 
of  justice.  Talbot  v.  Seanian,  1  Cranch,  1,  38:  Church  r.  Hubbart,  2  Cranch. 
187,  236;  Strother  v.  Lucas,  6  Pet.  763,  768;  Dainese  v.  Hale,  91  U.  S.  13,  20. 
It  is  equally  well  settled  that  the  several  States  of  the  Union  are  to  be 
considered  as  in  this  respect  foreign  to  each  other,  and  that  the  courts  of  one 
State  are  not  presumed  to  know,  and  therefore  not  bound  to  take  judicial 
notice  of,  the  laws  of  another  State.  .  .  .  Upon  principle,  therefore,  and 
according  to  the  great  preponderance  of  authority  [citing  numerous  cases, 
which  see],  whenever  it  becomes  necessary  for  a  court  of  one  State,  in  order  to 
give  full  faith  and  credit  to  a  judgment  rendered  in  another  State,  to  ascertain 
the  efToot  which  it  has  in  that  State,  the  law  of  that  State  must  be  proved, 
like  anv  other  matter  of  fact." — Eu. 


392  THE   BANK   OF   CHILLICOTHE   V.   DODGE.  [BOOK   II. 

of  $5,000,  and  advanced  the  further  sum  of  $4,928.33.  The  defend- 
ant's bill  was  illegal  by  the  statute  of  New  York,  and  on  suit  l)rought, 
the  defendant,  among  other  defences,  set  up  the  said  illegality. 

The  court  overruled  all  the  objections  and  denied  the  motion, 
for  the  reason  that  if  the  fact  was  as  the  defendant  insisted,  that 
the  paper  was  illegally  issued  and  void,  yet,  as  the  plaintiffs,  who 
were  non-residents  of  the  state,  paid  to  the  defendant  himself  a  full 
and  valuable  consideration  for  it,  without  notice  of  its  illegality,  they 
might  recover,  on  the  common  counts,  the  money  they  paid  the 
defendant  for  it,  with  interest.  To  this  decision  the  defendant 
excepted.  The  testimony  being  closed,  the  court  charged  the  jury 
that  the  defendant  having  insisted  that  the  bill  of  exchange  was 
illegally  issued,  without  authority,  and  was  fraudulent  and  void,  and 
the  proof  showing  that  the  plaintiffs  paid  $4,928.33  for  it  in  money, 
in  good  faith,  they  were  entitled  to  recover  that  sum,  with  the  interest 
on  it;  that  residing  in  a  foreign  state  they  would  not  be  presumed 
to  be  acquainted  with  the  banking  laws  of  this  state.  The  defend- 
ant's counsel  excepted,  and  the  jury  found  a  verdict  for  the  plaintiffs 
for  the  amount  of  the  draft,  with  interest.  And  the  defendant, 
upon  a  case,  moved  for  a  new  trial. ^ 

By  the  Court,  Johnson,  J.^  If  the  justice  who  held  the  circuit 
was  right  in  his  view  of  the  case,  the  recovery  of  the  money  advanced 
by  the  plaintiffs  to  the  defendant  was  proper.  There  could  be  no 
recovery  upon  the  instrument,  and  no  demand  or  notice  of  any  kind 
was  necessary.  If  his  view  was  erroneous,  a  new  trial  must  be  granted, 
of  course.  The  paper  negotiated  by  the  defendant  to  the  plaintiffs, 
upon  which  the  money  was  advanced,  was  a  time  draft  issued  by  the 
Farmers'  Bank  of  Seneca  County,  an  incorporated  banking  institution, 
payable  three  months  after  date,  to  the  order  of  the  defendant.  The 
defendant's  counsel,  upon  the  trial  insisted,  and  the  judge  held,  that 
this  paper  was  issued  by  the  bank  without  authority  and  was  void, 
and  that  no  recovery  could  be  had  upon  it.  This  position  was  clearly 
right.  The  statute  forbids  such  paper  to  be  issued,  and  it  was 
utterly  fraudulent  and  void.  No  person,  by  any  act,  could  give 
validity  or  vitality  to  it  as  commercial  paper,  anywhere.  And  so  are 
all  the  cases.  Leavitt,  receiver,  v.  Blatchford  and  others,  5  Barb. 
Sup.  C.  K.  9;  Affirmed  in  court  of  appeals,  3  Comst.  19.  So  far 
the  judge  ruled  as  requested  by  the  defendant's  counsel.  But  the 
justice  went  farther,  and  instructed  the  jury  that  as  this  paper  was 
made  void  by  an  act  of  our  state  legislature,  of  which  the  plaintiffs 
being  non-residents  of  the  state,  were  not  bound  to  take  or  supposed 
to  have  notice,  and  as  they  had  in  good  faith  advanced  to  the  defend- 
ant the  money  upon  it,  they  were  entitled  to  recover  the  money  thus 

'Statement  of  facts  is  shortened. — En. 

^Part  of  the  opinion  dealing  with  another  question  is  omitted. — Ed. 


CHAP.    II.]  COUNTY    OF    ALLEGHENY    V.    GRIER.  393 

advanced.  To  this  part  of  tlic  charge  the  defendant's  counsel  excepted. 
In  this  I  think  the  learned  justice  was  entirely  correct.  The  defend- 
ant was  a  resident  of  this  state,  and  chargeahle  with  a  knowledge 
of  all  legislative  enactments  here.  The  law  imputes  to  him  knowledge 
that  this  paper,  negotiated  hy  him,  was  utterly  void  and  worthless — 
no  better  than  mere  blank  paper.  The  money  was  then  advanced  and 
paid  to  him  without  consideration.  It  was  advanced  in  Ohio,  and  the 
plaintiffs  are  a  corporate  body  of  that  state.  They  are  not  pre- 
sumed to  have  notice  of  our  statutes.  The  statutes  of  our  state  are  only 
brought  to  the  notice  of  courts  and  citizens  of  that  state  by  proof. 
Had  it  been  shown  that  the  plaintiffs,  or  the  officers  of  the  bank,  had 
actual  knowledge  of  the  statute  in  question,  they  might,  notwith- 
standing their  non-residence,  be  placed  upon  the  footing  of  persons 
mutually  dealing  in  illegal  transactions.  But  there  is  no  such  ques- 
tion here.  It  is  not  pretended  that  officers  of  the  bank  had  any 
knowledge  in  fact  of  our  statute.  The  cause  was  evidently  tried  upon 
the  assumption  that  the  money  was  advanced  upon  the  draft,  in 
good  faith,  by  the  plaintiffs,  supposing  it  to  be  good.  No  question  of 
that  kind  was  raised  at  the  trial. 

The  plaintiffs  then  stand  in  precisely  the  same  situation  as  though 
the  money  had  been  paid  by  them  under  a  mistake  as  to  material 
facts.  Ignorance  of  the  law  of  a  foreign  government  is  ignorance  of 
fact — and  in  this  respect  the  statute  laws  of  the  other  states  of  this 
union  are  foreign  laws.  Haven  v.  Foster,  9  Pick.  112;  Norton  v. 
Harden,  3  Shepley,  45.  And  this  proceeds  upon  the  principle  that 
foreign  laws  are  matters  to  be  proved,  like  other  facts,  before  even 
courts  can  notice  them. 

It  is  an  elementary  principle  that  money  paid  under  a  mistake  of 
material  facts,  where  the  party  paying  derives  no  benefit  from  it,  may 
be  recovered  back. 

New  trial  denied. 


COUNTY  OF  ALLEGHENY  v.  GEIEE. 

Supreme  Court  of  Pennsylvania,  1897. 

[179  Pennsylvania  State,  639.] 

Assumpsit  to  recover  from  the  controller  of  Allegheny  county 
$1,290.32,  alleged  to  have  been  paid  to  him  by  mistake  in  excess  of 
his  salary  as  fixed  by  law.  The  defendant  demurred  to  the  state- 
ment for  the  following  reasons:  (1)  at  the  date  of  the  paATnents 
mentioned  in  the  plaintiff's  statement  the  salary  of  the  office  of 
controller  of  Allegheny  county  was  not  payable  under  the  act  of 
May  7,  ISO  I,  entitled,  "An  act  relating  to  Allegheny  County  ;"  (2)  the 


394  COUNTY    OF   ALLEGHENY    V.    GRIER.  [BOOK    II. 

salary  of  said  office  at  that  time  was  as  fixed  in  the  general  act, 
approved  May  11,  1881,  P.  L.  21,  and  entitled  a  supplement  to  an 
act  entitled  "An  act  to  carry  into  effect  section  5,  of  article  14  of 
the  constitution,  relative  to  the  salaries  of  county  officers  and  the 
payment  of  fees  received  by  them  into  the  state  or  county  treasury, 
in  counties  containing  over  150,000  inhabitants  and  approved  the 
31st  day  of  March,  1876,  amending  section  13  of  said  act;"  and 
under  said  act  the  salary  of  the  controller  was  $4,000;  (3)  in  any 
event  the  payments  made  to  this  defendant  and  sued  for  were  volun- 
tary payments;  (4)  the  statement  does  not  set  forth  any  legal  cause  of 
action  against  this  defendant. 

The  court  entered  judgment  for  the  plaintiff  on  the  demurrer. 

Error  assigned  was  in  entering  judgment  for  plaintiff  as  above. 

Opinion  by  Chief  Justice  Sterrett,  January  4,  1897 : 

The  principle  which  underlies  the  construction  heretofore  given 
the  act  of  1876  and  its  supplements  is  too  plain  for  question.  The 
constitution  had  declared  that  in  counties  of  a  specified  class,  their 
officers  should  be  paid  by  fixed  salaries;  and  the  legislature  sought 
by  that  act  to  accomplish  this  purpose.  It  accordingly  struck  down 
all  prior  acts  which  provided  for  the  payment  of  such  officers  in  fees 
as  being  necessarily  inconsistent  with  the  constitutional  mandate;  and 
hence  McCleary  v.  County,  163  Pa.  578,  and  allied  cases;  and  left 
those  acts  which  provided  for  the  payment  of  fixed  salaries,  because 
consistent;  and  hence  Bell  v.  County,  149  Pa.  381.  The  operation 
of  the  act  was  limited  by  the  accomplishment  of  its  purpose.  The  act 
of  1861  being  in  entire  harmony  with  the  .constitutional  intent,  it 
would  have  been  vain  and  useless  to  have  stricken  it  down.  The  act 
of  1864  which  fixed  the  controller's  salary  belongs  to  the  same 
category,  and  hence  the  court  below  was  clearly  right  in  holding  that 
the  present  case  is  not  distinguishable,  in  this  respect,  from  Bell  v. 
County,  supra.  The  act  of  1864  being  in  force,  the  amount  received 
by  the  controller  in  excess  of  the  salary  there  fixed  was  therefore 
illegal.  So  on  grounds  of  public  policy,  the  court  was  right  in  hold- 
ing that  the  maxim  volenti  non  fit  injuria  has  no  application  to  the 
illegal  payment  of  public  funds  to  a  public  officer, — more  especially 
where  as  here  it  is  the  peculiar  function  of  that  officer  to  guard  the 
public  treasury.  Public  revenues  are  but  trust  funds,  and  officers  but 
trustees  for  its  administration  for  the  people.  It  is  no  answer  to  a  suit 
brought  by  a  trustee  to  recover  private  trust  funds  that  he  had  been 
a  party  to  the  devastavit.  There  could  be  no  retention  by  color  of 
right :  Abbott  v.  Reeves,  49  Pa.  494.  With  much  the  stronger  reason 
is  tbis  doctrine  applicable  where  the  interests  of  the  whole  people  are 
involved ;  and  the  authorities  are  accordingly  numerous  to  this  effect. 
New  Orleans  v.  Finnerty,  27  La.  Ann.  681 ;  Com.  v.  Field,  84  Va.  26 ; 
Day  Land  &  Cattle  Co.  v.  State,  68  Texas,  526;  Am.  Steamship  Co.  v. 
Young,  89  Pa.  191;  Taylor  v.  B'd  of  Health,  31  Pa.  73;  Smith  v. 


CllAl'.    Jl.]  COUNTY    OF    ALLEOHEXY    V.    GRIER.  395 

Corn.,  41  Pa.  335,  and  cases  cited.  It  is  oljviously  immaterial 
whether  the  illegal  payment  be  through  design  or  mistake;  for  in 
either  event  the  result  must  be  not  only  misuse  of  trust  funds,  but 
what  is  of  far  more  importance,  demoralization  in  the  service.  The 
only  practical  difference  lies  in  this:  that  one  makes  a  criminal  imd 
the  other  a  trustee.  So  it  is  immaterial  by  what  officer  the  funds 
are  had  and  received,  fidelity  to  the  government,  which  he  represents 
and  is  sworn  to  support,  makes  restitution  a  duty.  Even  a  tenant  may 
not  question  his  landlord's  title,  and  mr.ch  less  may  a  public  servant, 
that  of  his  sovereign.  He  can  plead  neither  laches  nor  estoppel  in 
pais  to  a  suit  for  malversation.  Public  office  is  a  public  trust;  the 
sanctity  of  public  property  is  essential  to  its  due  administration; 
and  necessarily  implies  a  remedy  for  every  diversion  from  legitimate 
use.  The  attributed  effect  of  the  filing  and  advertisement  of  the 
controller's  annual  report,  so  far  as  relates  to  his  salary,  is  without 
merit.  The  report  is  given  the  "effect  of  a  judgment  against  the 
real  estate  of  the  officer  who  shall  thereby  appear  to  be  indebted  to 
the  county:"  but  the  act  of  1861  does  not  contemplate  that  the  con- 
troller shall  become  "indebted."  He  has  no  power  to  handle  public 
funds.  He  is  the  fiscal  officer  of  the  county  and,  as  such,  it  is  his  duty 
to  take  notice  of  illegal  disbursements  of  the  public  funds,  and  charge 
the  officer  who  is  guilty  of  misappropriation.  This  is  the  only  pro- 
tection the  people  have  against  the  illegal  acts  of  those  who  have  charge 
of  their  pecuniary  interests.  Commissioners  v.  Lycoming  Co.,  46  Pa. 
496.  Chosen  by  the  people  to  watch  and  take  care  of  these  inter- 
ests, it  cannot  be  expected  that  they  shall  in  turn  keep  a  watch  on  him. 
The  suggested  hardship  of  compelling  the  controller  to  refund  is 
more  specious  than  real.  The  adoption  of  the  constitutional  provision 
marked  a  radical  change  of  policy  and  should  have  put  him  on 
his  guard.  As  the  fiscal  officer  of  the  county  he  was  bound  to  take 
notice  that  the  construction  of  the  act  of  1876  was  open  to  question, 
and  that  without  the  aid  of  the  courts  he  must  act  at  his  peril.  His 
responsibility  is  not  answered  by  the  plea  of  inconvenience.  The 
county  would  soon  fall  into  a  condition  of  hopeless  insolvency  if  the 
"retarding  friction"  of  personal  inconvenience  were  once  recognized 
as  a  principle  of  defence  to  the  enforcement  of  its  duties.  It  follows 
that  there  is  no  error  in  the  judgment,  and  it  is  therefore  affirmed.' 

"'It  has  frequently,  Wis.  Cent.  Ry.  Co.  v.  United  States  (1896)  164  U.  S. 
190;  Barnes  v.  Dist.  of  Col.  (1887)  22  Ct.  of  CI.  366:  Ellis  v.  Bd.  of  Auditors 
(1895)  107  Mich.  528;  Heath  v.  Alhrook  (Iowa,  1904)  98  X.  W.  619;  County 
V.  Grier  (1897)  170  Pa.  639;  Bd.  of  Supervisors  v.  Ellison  (1875)  59  N.  Y. 
620;  Com.  v.  Field  (Va.  1887)  3  S.  E.  882,  though  not  uniformly.  County  r. 
Rundall  (1880)  43  Mich.  137;  Painter  v.  Polk  Co.  (1890)  81  Iowa.  242: 
Peo.  V.  Foster  (1890)  133  111.  496;  See  also  Morgan  Park  v.  Knopf  (1902) 
199  111.  444,  been  decided  that  the  rule  of  no  recovery  does  not  extend,  or  at 
least  'does  not  have  so  general  application,'  to  the  case  of  the  payment  of 


396  GILLIE    V.    GRANT.  [bOOK   II. 

GILLIE  V.  GEANT. 

SuPKEME  Court  of  New  York,  1897. 

[23  Appellate  Division,  596.] 

Appeal  by  the  defendant,  Hugh  J.  Grant,  as  receiver  of  the  St. 
Nicholas  Bank  of  New  York,  from  a  judgment  of  the  Supreme 
Court  in  favor  of  the  plaintiff,  entered  in  the  office  of  the  clerk  of  the 
county  of  New  York  on  the  12th  day  of  October,  1897,  upon  the 
verdict  of  a  jury  rendered  by  direction  of  the  court,  and  also  from 
an  order  entered  in  said  clerks'  office  on  the  14th  day  of  October, 

money  by  public  officers  or  public  agents.  The  reason  generally  offered  for 
this  limitation  is  the  importance  of  protecting  the  public  funds  and  the 
interests  of  the  community.  But  in  some  of  the  cases,  where  the  defendant 
is  a  public  officer  or  agent,  stress  is  laid  upon  the  fiduciary  relation  existing 
between  the  parties,  or  between  the  plaintiff's  principal  and  the  defendant. 
Ellis  V.  Bd.  of  Auditors  (1895)  107  Mich.  528:  Bartlett  v.  United  States 
(1839)  Dav.  9,  24  Fed.  Cases,  1021.  As  it  was  put  in  the  case  of  County  v. 
Grier  (1897)   179  Pa.  G39: 

"  'Fidelity  to  the  government  which  he  represents  and  is  sworn  to  support, 
makes  restitution  a  duty.' 

*'In  still  other  cases  it  is  contended  that  the  reason  for  allowing  a  recovery 
is  that  the  mistake  of  an  agent  is  not  chargeable  to  his  principal.  Board  of 
Supervisors  v.  Ellis  (1875)  59  N.  Y.  620.  A  curious  combination  of  all  three 
notions  is  found  in  the  opinion  in  the  United  States  Court  of  Claims  case  of 
Barnes  v.  District  of  Columbia  (1887)  22  Court  of  Claims,  366,  394,  quoted 
with  approval  by  the  United  States  Supreme  Court  in  Wisconsin  Central 
Kailway  v.  United  States    (1896)    164  U.  S.   190. 

"  'The  doctrine,"  says  the  court,  'that  money  paid  can  be  recovered  back 
when  paid  in  mistake  of  fact  and  not  of  law  does  not  have  so  general  appli- 
cation to  public  officers  using  the  funds  of  the  people  as  to  individuals 
dealing  with  their  own  money  when  nobody  but  themselves  suffer  for  their 
ignorance,  carelessness,  or  indiscretion,  because  in  the  former  case  the  ele- 
ments of  agency  and  the  authority  and  duty  of  officers,  and  their  obligations 
to  the  public,  of  which  all  persons  dealing  with  them  are  bound  to  take  notice, 
are  always  involved.' 

"In  Iowa  a  distinction  seems  to  be  recognized  between  cases  in  which  the 
particular  payment  sought  to  be  recovered  is  within  the  general  scope  of 
corporate  powers  and  is  merely  unauthorized  but  not  prohibited  by  law,  and 
cases  in  which  the  payment  is  clearly  beyond  the  corporate  powers  or  in 
direct  violation  of  law.  In  the  former  class  relief  is  denied^  Painter  v. 
Polk  Co.  (1890)  81  Iowa,  242,  in  the  latter  granted,  Heath  v,  Albrook  (1904) 
123  Iowa,  559.  Some  such  distinction  is  suggested  also  in  the  opinion  of 
the  Supreme  Court  of  Illinois,  in  People  v.  Foster  (1890)  133  111.  496,  but  in 
the  dicta  of  later  cases  it  is  disregarded.  Morgan  Park  v.  Knopf  (1902) 
199  111.144";  Mr.  Woodward's  Money  Paid  Under  Mistake  of  Law,  5  Columbia 
L.  Rev.  372,  373.— Ed. 


CllAr.    II.]  GILLIE    V.    GRANT.  397 

1897,  denying  the  defendant's  motion  for  a  new  trial  made  upon  the 
minutes. 

This  action  was  brought  to  recover  money  received  by  the  defend- 
ant as  the  proceeds  of  an  execution  sale  against  the  George  C. 
Tread  well  Company.  In  January,  1894,  the  plaintiff  brought  an 
action  against  the  company,  in  which  a  warrant  of  attachment  was 
issued  to  the  sheriff  of  Albany  county.  On  January  9,  1894,  a  levy 
was  made  under  this  warrant  and  property  sot  apart  for  the  satisfac- 
tion of  the  plaintiff's  claim.  The  following  day  a  warrant  of  attach- 
ment against  the  company  was  issued  in  an  action  brought  by  the 
defendant,  and  on  January  11,  1894,  a  levy  was  made  under  this 
warrant,  and  property  set  apart  for  the  satisfaction  of  the  defend- 
ant's claim.  The  property  attached  under  the  plaintiff's  warrant 
was  sold  under  an  execution  subsequently  issued  upon  a  judgment 
ol:)tained  by  him  in  the  action,  but  proved  insufficient  to  satisfy  such 
judgment.  Plaintiff  thereupon  moved  in  Albany  county  to  compel 
the  sheriff  to  sell  the  property  held  under  the  defendant's  warrant 
and  apply  the  proceeds  upon  the  plaintiff's  judgment.  This  motion 
was  denied  at  Special  Term  on  February  12,  1895,  and  the  order 
was  affirmed  by  the  General  Term  of  the  third  department  in  the 
following  March.  In  January,  1896,  the  Court  of  Appeals  reversed 
these  orders  and  granted  the  motion.  In  the  meantime,  in  July, 
1895,  the  sheriff,  not  being  stayed  from  so  doing,  sold  the  property 
held  under  the  defendant's  warrant  and  paid  over  the  proceeds  to 
him.  After  the  decision  of  the  Court  of  Appeals,  a  motion  was  made 
by  the  plaintiff  to  compel  the  defendant  to  pay  him  the  amount 
received  from  the  sheriff.  The  order  entered  upon  this  motion  on  May 
26, 1897, withheld  decision  as  to  the  plaintiff's  right  to  compel  payment, 
but  granted  him  leave  to  bring  an  action  to  recover  the  amount.  In 
pursuance  of  this  order  the  present  action  was  begun. 

Barrett,  J.  There  are  two  grounds  upon  which  the  judgment  in 
this  action  should  be  sustained:  First,  a  party's  right  to  follow  prop- 
erty upon  which  he  has  a  lien  into  the  hands  of  one  who  has  received 
the  property  with  knowledge  of  that  lien,  and  who  is  not  a  bona  fide 
purchaser  for  value;  second,  the  well-recognized  exception  to  the 
general  rule  that  money  paid  under  a  mistake  of  law  cannot  be 
recovered  back,  namely,  where  the  money  is  so  paid  to  an  officer  of 
the  court.^ 

The  plaintiff's  right  to  recover  upon  the  second  proposition  above 
stated  is  equally  clear.  A  plain  intimation  to  this  effect  was  given 
by  tlio  Court  of  Appeals  in  deciding  that  a  case  for  restitution 
under  section  1323  of  the  Code  of  Civil  Procedure  had  not  been 
made  out.  Gillig  v.  George  C.  Treadwell  Company.  151  N.  Y. 
556.     Upon  this  intimation  tlie  plaintiff  applied  in  this  department 

'The  diseussion  of  the  first  point  is  omitted. — Ed. 


398  GILLIE    V.    GRANT.  [BOOK    II. 

for  an  order  requiring  the  receiver  to  pay  over  the  money  to  him; 
but  decision  upon  the  application  was,  to  quote  the  language  of  the 
order,  "withheld,"  and,  instead  of  granting  the  relief  asked,  the 
court  gave  Gillig  leave  to  bring  this  aqtion.  We  think  the  court 
might  well  have  afforded  the  plaintiff  the  summary  relief  which  he 
asked,  and,  there  being  no  dispute  about  the  facts,  the  delay  and 
expense  of  an  action  seem  to  have  been  unnecessary.  The  rule 
that  money  paid  under  a  mistake  of  law  cannot  ordinarily  be  recov- 
ered back  is  entirely  inapplicable  to  the  present  state  of  facts. 
This  action  is  not  against  the  sheriff,  nor  is  it  brought  in  the  right 
of  the  sheriff.  It  is  brought  in  the  plaintiff's  own  right  to  recover 
money,  to  which  he  is  entitled,  from  one  who  has  possession  of  it 
without  right.  But  even  if  the  money  had  been  paid  by  the  sheriff 
to  Gillig,  and  the  latter,  under  a  misconception  of  his  legal  rights 
under  the  statute,  had  paid  it  over  to  the  receiver,  an  action  to  recover 
it  back  would  lie,  for  the  general  rule  is  subject  to  the  limitation  that 
money  paid  under  a  mistake  of  law  to  an  officer  of  the  court  can 
be  recovered.  In  Ex  parte  James,  9  L.  K.  (Ch.  App.  Gas.)  609, 
Lord  Justice  James  applied  this  limitation  to  a  trustee  in  bankruptcy 
with  the  observation  that  the  general  rule  "must  not  be  pressed  too 
far."  There  a  creditor  had  received  money  to  which  he  was  actu- 
ally entitled  under  an  execution  sale  against  the  bankrupt.  He  paid 
this  money  over  to  the  trustee  under  the  mistaken  supposition 
that  the  latter  was  entitled  thereto  as  matter  of  law.  "I  am  of 
opinion,"  said  Lord  Justice  James,  "that  a  trustee  in  bankruptcy  is 
an  officer  of  the  court.  He  has  inquisitorial  powers  given  him  by 
the  court,  and  the  court  regards  him  as  its  officer,  and  he  is  to 
hold  money  in  his  hands  upon  trust  for  its  equitable  distribution 
among  the  creditors.  The  court  then,  finding  that  he  has  in  his  hands 
money  which  in  equity  belongs  to  some  one  else,  ought  to  set  an  exam- 
ple to  the  world  by  paying  it  to  the  person  really  entitled  to  it.  In 
my  opinion  the  Court  of  Bankruptcy  ought  to  be  as  honest  as  other 
people."  This  decision  was  followed  in  Ex  parte  Simmonds,  L.  E. 
(16  Q.  B.)  308,  where  Lord  Esher  observed  that,  although  the 
court  will  in  general  permit  an  individual  litigant  to  do  a  "shabby 
thing,"  namely,  to  keep  the  money  thus  acquired,  it  will  not  allow 
its  own  officer  to  do  this.  "It  will,"  said  this  learned  judge,  "direct 
its  officer  to  do  that  which  any  high-minded  man  would  do,  viz.,  not 
to  take  advantage  of  the  mistake  of  law.  This  rule  is  not  confined 
to  the  Court  of  Bankruptcy.  If  money  had  by  a  mistake  of  law 
come  into  the  hands  of  an  officer  of  a  court  of  common  law  the 
court  would  order  him  to  repay  it  as  soon  as  the  mistake  was  dis- 
covered." The  doctrine  of  these  cases  commends  itself  to  both  reason 
and  justice. 

In  quoting  with  approval  the  expressions  of  these  learned  English 
judges,  we  mean  no  reflection,  ,cven  indirectly,  upon  the  receiver  or 


CHAP.    II.]  MOWATT    V.    WRIGHT.  399 

his  learned  counsel.  Indeed,  the  diligence  and  tenacity  of  these 
gentlemen,  in  the  pursuit  of  property  for  the  benefit  of  the  trust 
estate  represented  by  them,  are  commendable.  It  would,  however, 
be  a  reproach  upon  the  administration  of  justice  should  the  court, 
when  the  question  is  squarely  before  it,  hesitate  to  admonish  its 
officer  to  desist  from  further  efforts  to  augment  his  trust  estate  at 
the  expense  of  one  who  is  clearly  entitled  to  the  money  which  that 
officer  holds. 

We  think,  therefore,  that  the  direction  below  was  right  and  that 
the  judgment  appealed  from  should  be  affirmed,  with  costs. 

Williams  and  Patterson,  JJ.,  concurred;  Van  Brunt,  P.  J., 
and  RuMSEY,  J.,  concurred  in  result  upon  second  ground  stated  in 
opinion. 

Judgment  affirmed,  with  costs. ^ 


MOWATT  V.  WRIGHT. 

Supreme  Court  of  New  York,  1828. 

[1  Wendell,  355.] 

This  was  an  action  of  assumpsit,  commenced  in  1827,  tried  at  the 
New- York  circuit  in  April,  1828,  before  the  Hon.  Ogden  Edwards, 
one  of  the  circuit  judges,  to  recover  back  $1000,  paid  by  the  plaintiffs 
to  the  defendant  under  the  following  circumstances:  In  1821,  the 
defendant  brought  several  actions  to  recover  her  dower,  as  the  widow 
of  Dr.  John  G.  Wright,  in  certain  real  estate  in  the  city  of  New- York. 
The  late  John  Mowatt,  junior,  the  father  of  the  plaintiffs,  was 
vouched  to  warrant  the  title  of  the  defendants  in  those  suits,  as  he 
had  formerly  owned  the  property,  and  had  sold  it  with  a  covenant 
of  warranty.  Pending  the  suits  he  died,  and  his  heirs,  the  plaintiffs, 
were  vouched  in  his  place.  On  the  24th  November,  1821,  a  com- 
promise was  effected,  the  terms  of  which  were,  th.it  the  plaintiffs 
should  pay  the  defendant  $1000,  that  the  suits  should  be  discon- 
tinued, the  parties  paying  their  own  costs,  that  the  defendant  should 
execute  a  release  of  dower,  and  her  children  shoukl  quit-ehiim  all 
interest  in  the  premises.  The  money  was  accordingly  paid,  and  the 
releases  executed.  A  few  days  after  the  settlement,  a  release  was  found 
in  the  possession  of  Col.  Piatt,  through  whom  the  title  had  passed, 
executed  by  the  husband  of  the  defendant  and  lierself,  bearing  date  the 

'See  in  addition  to  cases  cited  in  the  text  of  principal  case:  Dixon  r.  Brown 
(1886)  L.  R.  32  Ch.  D.  597;  In  re  Opera.  L.  R.  flSOl]  2  Ch.  154:  Moulton  v. 
Bennett  (1836)  18  Wend.  586  (in  which  an  attorney  as  officer  of  the  court 
was  compelled  to  return  fees  not  legally  chargeable). — Ed. 


400  MOWATT    V.    -WRIGHT.  [bOOK    II. 

8th  day  of  May,  1784,  conveying  the  premises  in  which  dower  had 
been  demanded,  to  Colonel  Burr,  from  whom  the  title  had  passed 
to  Colonel  Piatt,  from  Piatt  to  J.  Winter,  and  from  Winter  to  J. 
Mowatt,  the  ancestor  of  the  plaintiffs. 

By  the  Court,  Savage,  Ch.  J.  The  question  is,  whether  the  $1000 
were  paid  by  mistake  of  the  facts,  or  compulsion  of  law ;  or  whether  it 
was  voluntary,  and  to  compromise  a  suit  and  a  disputed  claim?  At 
the  trial,  it  was  attempted  to  shew  fraud  in  Mrs.  Wright ;  but  that  was 
satisfactorily  rebutted.  She  was  married  at  17  years  of  age,  and 
soon  after  executed  the  conveyance  of  these  lots.  In  1821,  she  was 
informed  by  a  Mr.  Baldwin,  that  she  had  a  right  of  dower  in  certain 
lots;  but  she  had  forgotten  that  her  husband  had  ever  owned  those 
lots,  and  took  pains  to  make  all  possible  inquiries  for  the  conveyance, 
before  she  brought  her  suits.  The  jury  passed  uppn  the  question  of 
actual  fraud,  and  found  a  verdict  in  her  favor.  On  the  question  of 
mistake  and  compulsion,  the  judge  decided  that  the  plaintiffs  were 
not  entitled  to  recover.  It  appeared  that  the  attornies  and  counsel 
for  the  defendants  in  the  dower  suits,  w^ere  of  opinion  that  a  release 
had  been  executed  by  Dr.  Wright,  in  which  the  defendant  had  joined. 
A  lease  for  one  year  from  Dr.  Wright  to  Col.  Burr  was  found;  and 
it  was  therefore  believed  that  a  proper  release  had  also  been  executed. 
The  testimony  is  uncontradicted,  that  the  payment  of  the  $1000 
was  voluntary,  as  a  compromise  of  Mrs.  Wright's  claim,  and  of  the 
claim  of  the  heirs  of  her  husband;  but  it  is  contended  that  the  pay- 
ment was  compulsory,  inasmuch  as  a  suit  was  brought,  and  at  the 
time  of  the  compromise,  the  conveyance  from  Mrs.  Wright  could  not 
be  found. 

The  action  for  money  had  and  received  in  general,  lies  for  money 
which  ex  cequo  et  bono,  the  defendant  ought;  to  refund,  as  for  money 
paid  by  mistake ;  or  upon  a  consideration  which  happens  to  fail ;  or 
for  money  obtained  by  imposition;  or  extortion;  or  oppression;  or  by 
taking  an  undue  advantage  of  the  plaintiff's  situation.  2  Burr.  1012. 
A  mistake  which  entitles  a  party  to  sustain  this  action,  must  be  a 
mistake  of  fact.  Where  there  is  no  fraud  nor  mistake  in  matter 
of  fact,  if  the  law  was  mistaken,  tlie  rule  applies  that  ignomntia  juris 
non  excusat.  Doug.  471.  An  error  of  fact  takes  place,  either  when 
some  fact  which  really  exists  is  unknown,  or  some  fact  is  supposed 
to  exist,  w^hich  really  does  not  exist.  But  when  a  person  is  truly 
acquainted  with  the  existence  or  non-existence  of  the  facts,  but  is  igno- 
rant of  the  legal  consequences,  he  is  under  an  error  of  law.  2  Ev.  Poth. 
App.  437.  It  is  now  generally  conceded,  that  the  law  is  as  laid  down 
by  Bin.LEK.  Justice  (Doug.  471),  that  the  mistake  must  be  a  mistake 
of  fact  and  not  of  law,  though  a  very  learned  argument  will  l)e  found 
in  Evan's  Pothier,  sustaining  the  proposition  that  a  mistake  of  either 
law  or  fact,  will  entitle  the  party,  paying  money  under  it,  to  maintain 
this  action  to  recover  it  back.     Some  of  the  earlier  cases  do  not  take 


CHAP.    II.]  MOWATT    V.    WRIGHT.  401 

the  distinction;  and  De  Grey,  Chief  Justice,  in  Farmer  v.  Arundel, 
2  Bl.  Rep.  824,  825,  says,  where  money  is  paid  by  one  man  to  an- 
other, on  a  mistake  either  of  fact  or  of  law,  or  by  deceit,  this  action 
will  certainly  lie;  but  the  later  authorities  contradict  this  propo- 
sition so  far  as  regards  a  mistake  of  the  law.  There  are  cases  also  of 
payment  by  compulsion,  and  by  legal  process,  where  the  party  has  been 
subsequently  permitted  to  recover  it  back.  The  case  of  Astley  v. 
Reynolds,  2  Str.  915,  was  an  action  for  money  had  and  received. 
The  plaintiff  had  pawned  plate  to  the  defendant  for  £20,  and  went 
afterwards  to  redeem  it,  and  offered  the  principal  and  £4,  which  was 
more  than  legal  interest;  but  the  defendant  demanded  £10,  which  the 
plaintiff  paid,  and  then  brought  his  action  to  recover  the  excess 
above  lawful  interest.  It  was  contended  that  he  could  not  recover, 
there  being  neither  mistake  nor  force,  and  his  remedy  by  trover  being 
open  to  him  after  tender,  and  therefore  he  came  within  the  rule  that 
volenti  non  fit  injuria.  But  the  court  said  they  considered  it  a  pay- 
ment by  compulsion;  that  the  plaintiff  might  have  such  immediate 
want  of  his  goods,  that  trover  would  not  afford  him  a  proper  remedy ; 
that  volenti  non  fit  injuria  applies  only  where  the  party  had  his  free- 
dom of  exercising  his  will,  which  this  man  had  not.  I  presume  there 
were  facts  in  that  case  not  reported,  from  this  remark,  as  there  is 
nothing  in  the  case  to  shew  that  the  plaintiff  had  not  the  liberty  of 
exercising  his  will.  This  case,  Ch.  J.  Spexcer,  in  Hall  v.  Schultz, 
4  Johns.  R.  245,  considers  as  overruled  by  Knibbs  v.  Hall,  1  Esp.  84, 
where,  in  an  action  for  use  and  occupation,  it  appeared  that  the  plain- 
tiff had  let  certain  rooms  to  the  defendant.  The  plaintiff  demanded 
rent  at  25  guineas ;  the  defendant  insisted  that  he  had  taken  them  at 
20  guineas;  but  on  the  plaintiff's  threatening  to  distrain,  defendant 
paid  the  25  guineas.  He  now  offered  to  shew,  that  the  rent  was  really 
but  20  guineas,  and  to  set  off  the  5  guineas  in  this  action,  as  having 
been  paid  by  compulsion.  But  Ld.  Kexyon  was  of  opinion,  that  this 
could  not  be  deemed  a  payment  by  compulsion,  as  the  defendant 
might,  by  a  replevin,  have  defended  himself  against  the  distress. 

There  are  cases,  undoubtedly,  where  an  undue  advantage  is  taken  of 
the  partv's  situation,  in  which  he  may  pay  money,  with  knowledge  of 
all  the  facts  and  the  law  too,  and  afterwards  recover  it  back.     Such 

was  the  case  of  v.  Piggott,  cited  in  Cartwright  v.  Rowley, 

2  Esp.  723,  where  the  steward  of  an  estate  being  in  possession  of 
deeds  wanted  on  a  trial,  charged  extravagantly  for  producing  them, 
and  the  money  was  recovered  back  from  him  in  this  action.  The 
money  was  held  not  to  have  been  paid  voluntarily,  but  from  necessity 
and  the  urgency  of  the  case,  as  the  plaintiff  could  not  do  without  the 
deeds. 

The  case  of  Cobden  v.  Kendrick,  4  T.  R.  431,  has  been  relied  on  for 
the  plaintiff.  The  facts  were  these :  Previous  to  that  suit,  the  defend- 
ant, K.,  had  sued  the  plaintiff,  C,  on  a  promissory  note;  and  after 


402  MO  WATT  V.  wMUMvr.  [book  ir. 

• 

a  writ  of  iiKjuirv  executed,  the  suit  was  compromised  ami  jiart  paid. 
Soon  afterwards,  Kendrick  told  his  attorney  that  he  was  glad  it  was 
compromised,  for  it  was  a  lottery  transaction,  and  he  had  given  but 
£10  for  the  note,  which  was  for  £150 :  thereupon,  this  suit  was  brought 
for  the  money  so  paid.    No  question  was  raised  but  that  the  action  was 
sustainable.     It  was  a  clear  case  of  fraud.     But  in  Mariott  v.  Hanii)- 
ton,  7  T.  R.  260,  the  facts  were  more  analogous  to  the  case  before 
us.    H.  had  previously  sued  M.  for  goods  sold,  and  which  had  actually 
been  paid  for  and  a  receipt  given ;  but  not  being  able  to  produce  the 
receipt,  nor  prove  payment  in  any  other  manner,  M.  gave  a  cognovit 
and  paid  the   money.      Mariott  afterwards  found   the  receipt,  and 
brought  his  action  for  money  had  and  received;  but  Lord  Kenyon 
held,  that  money  recovered  under  legal  process,  could  not  l)c  recovered 
back,  however,  unconscientiously  retained  by  the  defendant,  and  non- 
suited the  plaintiff.     On  a  motion  to  set  aside  the  nonsuit,  the  court 
said,  that  after  recovery  by  legal  process,  there  must  be  an  end  of 
litigation;  and  that  it  would  tend  to  encourage  the  greatest  negligence, 
if  a  door  were  opened  to  parties  to  try  their  causes  again,  because  they 
were  not  properly  prepared  with  their  evidence  the  first  time.   Neither 
of  these  cases  can  be  said  to  be  like  this  case ;  for,  in  the  first,  the  re- 
covery was  on  the  ground  of  fraud,  which  is  negatived  here;  and  the 
last  differs  from  this,  because  there  had  been  an  actual  judgment, 
though  by  cognovit,  and  here  there  was  a  compromise  before  judg- 
ment.   The  cases  founded  on  mistake,  seem  to  rest  on  this  princii)le : 
that  if  parties,  believing  that  a  certain  state  of  things  exists,  come  to 
an   agreement  with   such  belief  for  its  basis,  on   discovering  their 
mutual  error,  they  are  remitted  to  their  original  rights.     On  this 
prin(i})le  was  determined  the  case  of  Cox  v.  Prentice,  3  i\I.  &  S.  314, 
where  a  bar  of  silver  was  purchased  by  the  plaintiffs  of  the  defendant, 
and  paid  for  according  to  the  number  of  ounces  calculated  by  an  assay- 
master;  but  it  being  ascertained  afterwards  tliat  a  mistake  had  been 
made,  by  which  they  had   paid   more  than   tlu;  value,  they  bvouglit 
their  action  and  recovered  the  excess.     Lord  Kllkn'bohoikjh  said   il 
was  a  case  of  iiiutii;il  innocence  and  equal  error,  and  a  ])roper  case  for 
sucli  an  action.     Hut  when  a  party  pays  money  voluntarily,  with  full 
knowledge,  or  full  means  of  knowledge  of  all  the  facts  of  the  case, 
the  party  ko  paying  cannot  recover  it  back.     Bilbie  r.  Lumley,  2  East, 
470.     The  ground  on  which  the  action   was  brought,  was,  that   llie 
money  was  paid  under  a  mistake,  by  uliicli  the  underwriter  had  ])aid 
an  insurance,  a  material  letter  having  been  withheld  at  the  tinv  of 
insurance.     .At  tiie  trial,  that   fact  was  contradicted;  and  the  plaintiff 
then  insisted  that  the  money  having  been  paid  under  a  mistake  of  the 
law,    the    action    might    bi-    sustained;    and    >o    the    jiidge    ruled    at 
nisi  })rius.      Hut   on   motion   to  set   a~iile   the   verdict.    Lord    Ili.i.KX- 
noHOi.'Gii  said  he  never  heard  of  any  case.  exce|)t  Chat  field  v.  Paxton, 
where  such  a  recovery  was  had ;  and  tliat  case  was  ultimately  de- 


CHAP.    II.  J  MOWATT    V.    WRIGHT.  403 

cided  on  some  other  circumstances;  but  it  was  so  doubtful  as  not 
to  be  reported. 

In  Brisbane  v.  Dacers,  5  Taunt.  155,  Best,  Justice,  gives  a  full 
statement  of  the  case  of  Chatfield  v.  Paxton,  having  been  counsel  in 
the  cause,  from  which  it  seems  that  the  intimation  given  by  Lord 
IvENYON  at  the  trial,  that  ignorance  of  the  law  was  a  sufficient  ground 
for  the  action,  was  abandoned,  and  the  judges  put  it  wholly  on  the 
ground  that  the  plaintiff  had  not  a  knov/ledge  of  the  facts.  In  the 
course  of  the  argument,  Best,  Serjeant,  advanced  this  proposition, 
speaking  of  the  doctrine  of  Lord  Ellenborough,  in  Bilbie  v.  Lumley, 
to  wit :  that  money  shall  not  be  recovered  bade,  if  it  be  consistent  with 
honor  and  conscience  to  retain  it,  but  otherwise  it  shall.  Gibbs,  Justice, 
interrupted  him,  saying,  "The  principle  has  always  been  this:  wher- 
ever the  money  has  been  paid  in  consequence  of  a  demand  as  of  right, 
then,  although  the  demand  was  unfounded,  the  payment  cannot  be 
recovered  back."  There  is  a  case  of  money  paid  under  distress  for 
standings  in  a  market ;  though  the  party  had  no  right  to  distrain,  the 
money  could  not  be  recovered  back.  The  facts  in  the  case  then  under 
argument  were,  that  the  plaintiff  was  captain  of  a  ship  under  com- 
mand of  the  defendant's  testator,  Admiral  Dacers.  The  plaintiff  had 
received  a  considerable  sum  for  transporting  specie,  one  third  of  which 
he  paid  to  the  admiral,  under  a  mistaken  apprehension  that  he  was 
entitled  to  it,  and  then  brought  his  action  to  recover  it  back.  In 
deciding  the  case,  Gibbs,  Justice,  says,  "We  must  take  this  payment  to 
have  been  made  under  a  demand  df  right,"  and  then  repeats  the 
doctrine  above  stated.  He  adds,  "I  think,  that  by  submitting  to  the 
demand,  he  that  pays  the  money  gives  it  to  the  person  to  whom  he 
pays  it,  and  makes  it  his,  and  closes  the  transaction  between  them." 
This  was  said  under  the  supposition  that  there  was  a  full  knowledge 
of  all  the  facts  upon  which  the  demand  was  founded. 

In  the  case  of  Bulkely  v.  Stewart,  1  Day,  133,  the  supreme  court 
of  Connecticut  say,  "This  action  does  not  lie  to  recover  back  money 
voluntarily  paid  on  a  claim  which  the  party  disputes,  though  he  pay 
it,  expressly  reserving  his  right  to  litigate  his  claim."  The  cases 
in  Massachusetts,  where  the  plaintiff  recovered,  are  cases  where  the 
money  was  paid  under  a  mistake  of  the  facts.  Many  more  cases 
might  be  cited,  but  those  already  referred  to,  shew  the  principles 
upon  which  the  action  has  been  sustained,  and  upon  which  it  has  been 
defeated.  In  the  present  case,  it  now  appears  that  the  defendant  had. 
in  fact,  no  right  to  the  money  paid  by  the  plaintiffs;  but  it  was  paid 
upon  a  claim  of  right  which  was  honestly  made  by  her;  and  the  plain- 
tiffs here,  who  wore  virtually  defendants  in  the  dower  suits,  acted 
under  as  full  a  knowledge  of  the  facts  as  the  demandant.  She.  in 
truth,  believed  that  she  had  never  executed  a  deed ;  but  the  plaintiffs 
acted  under  the  belief,  as  testified  by  the  witnesses,  that  there 
was  such  a  deed  in  existence,  but  for  reasons  which  are  stated. 


4(»4  ERKENS    r.    MCOLIX.  [BOOK    II. 

they  thought  tliat  tlie  j)aymt'nt  of  the  $1000  was  the  shortest  and 
cheapest  way  of  settling  the  clisj)ute.  This  sum  of  money,  then,  was 
given  to  Mrs.  Wright  lo  quiet  the  ehiim,  in  the  hmguage  of  Mr.  Justice 
Best.  She  had  a  right  to  consider  it  her  own  without  dispute.  She 
has  probahly  spent  it;  "and  it  would  be  most  mischievous  and  unjust, 
if  he  who  has  acquiesced  in  the  right  by  such  voluntary  jiayment, 
should  be  at  liberty,  at  any  time  within  the  statute  of  limitations, 
to  rip  up  the  matter  and  recover  back  the  money." 

1  cannot  consider  this  is  a  case  of  mistake  of  fact  or  of  law.  Mrs. 
Wright  brought  suits  for  a  claim  which  she  thought  well  founded. 
The  defendants  believed  there  was  a  defence,  but  they  could  not 
produce  the  evidence  of  it,  like  the  case  of  the  lost  receipt :  they, 
therefore,  paid  a  sum  of  money,  as  the  easiest  and  cheapest  way  of 
settling  the  claim.  It  is  a  voluntary  payment,  though  they  would  not 
have  made  it,  could  they  have  produced  the  evidence  of  their  title 
at  the  time.     It  is  now  too  late  to  call  the  settlement  in  question. 

I  am  of  opinion  that  the  motion  to  set  aside  the  verdict  be  denied.^ 


ERKENS  V.  NICOLIN. 

Supreme  Court  of  ^Iixnesota,  1888. 

[30  Minnesota,  461.] 

Ai'i'E.vL  by  defendant  from  an  order  of  the  district  court  for  Scoti: 
county,  Edson,  J.,  presiding,  refusing  a  new  trial  after  a  trial  by 
the  court. 

Mitchell,  J.  Action  to  recover  back  the  money  ))ai(l  by  |)laintilT 
to  fh.'forulant  for  a  fpiitclaim  deed  of  a  piece  of  land  in  the  village  of 
Jordan.  The  facts,  as  di.sclosed  by  the  evidence,  are  that  the  defendant 
platted  into  lots  a  tract  of  land,  of  which  he  was  the  owner,  lying 
between  Water  street  and  Sand  creek.  As  shown  upon  ihe  plat,  the 
north  and  .south  lines  of  the  lots  extend  from  Water  street  to  the 
creek.  The  distance  marked  on  th(^  ])lat  gave  the  length  of  these 
linos  as  80   feet,  but  the  actual   distance^   from   Water  street  to  the 

H'larko  r.  Diifflior  (1«24)  n  Cow.  07-1  is  iisually  ro;,'ar(l«'il  ns  tlip  It'iulinp  oas^ 
in  thin  rfninlry  on  inistako  of  law.     Tho  question  was  not   really  involved,  as 
the  re(f)very  was  liarreil  liy  tlie  statute  of  limitations,  so  tliat   the  learned  and 
flalmratf  disenssion  on  tlie  point  of  mistake  is  really  a  tlictum.     It  does,  how- 
ever, Htate  the  law  as  it  is.  and  is  (hen-fore  vaiuahle,  althou^di  clearly  ohifrr. 

"That  a  ri(,'ht  of  recovery  in  such  i-ases,  where  there  is  mistake  or  i^rnoranoe 
an  to  material  facts,  Itiit  imt  whore  there  i«  a  mistake  of  law  Imt  no  mistake 
as  to  the  facts,  is  a  pnint  njion  which  Mowatt  r.  Wrijrht  is  frc(iiiently  cited 
a.H  an  authority  in  the  New  York  deci-sions.     Whcadon  v.  Olds,  'JO  WCrid.   170; 


CHAP.    11.]  ERKEXS    V.    NICOLIN.  4D5 

creek  was  110  feet.  One  of  these  lots,  and  the  adjoining  35  feet  of 
another,  had  been  conveyed  by  defendant,  according  to  the  pUit,  to 
plaintiff  or  plaintiff's  grantor.  Subsequently  defendant  claimed  and 
stated  to  plaintiff,  in  substance,  that  the  lots  only  extended  back  80 
feet,  according  to  the  distance  indicated  on  the  plat,  and  hence  that 
he  still  owned  the  strip  of  30  feet  next  to  the  creek.  Plaintiff  knew 
that  defendant's  claim  was  based  wholly  upon  the  theory  that  the 
distance  given  on  the  plat  would  control,  and  hence  that  his  claim 
of  title  was  in  fact  but  expressions  of  opinion  as  to  the  legal  effect  and 
construction  to  be  given  to  the  plat.  So  far  as  the  evidence  shows, 
defendant  made  this  claim  in  good  faith,  and  honestly  supposed  that 
his  deeds  of  the  lots  only  conveyed  80  feet.  PlaintifE  took  the  matter 
under  consideration  for  nearly  a  month,  and  went  to  the  register's 
office  and  examined  the  plat  for  himself.  He  then  obtained  from 
defendant  and  wife  a  quitclaim  deed  of  all  the  land  down  to  the  creek, 
and  paid  therefor  the  money  which  he  now  seeks  to  recover.  When 
he  paid  the  money  he  knew  all  the  facts,  and  had  the  same  means  of 

Rheel  v.  Hicks,  25  N.  Y.  291;  Chapman  v.  City  of  Brooklyn,  40  id.  380; 
Supervisors  of  Onondaga  Co.  v.  Briggs,  2  Den.  40;  Boyer  v.  Pack,  id.  108; 
Hargous  v.  Ablon,  3  id.  408;  Wyman  v.  Farnsworth,  3  Barb.  371;  Lott  v. 
Swezey,  29  id.  92;  Grainger  v.  Oliott,  1  Lans.  171;  Goddard  v.  Merchants' 
Bank,  2  Sand,  253.  That  the  action  for  money  had  and  received  is  founded 
on  princi])les  of  equity,  and  entitles  the  defendant  to  show,  if  he  can,  that  he 
is  not  equitably  bound  to  pay  the  money,  is  held  on  the  authority  of  the 
principal  case,  in  Eddy  v.  Smith,  13  Wend.  491." — Note  to  principal  case  in 
19  Am.  Dec.  515. 

So  if  plaintiff  and  defendant  submit  a  question  of  boundary  to  a  surveyor 
who  establishes  the  line,  and  plaintiff  thereupon  pays  money  for  trees  cut  on 
defendant's  land,  the  plaintiff  cannot,  in  the  absence  of  fraud,  recover  in 
assumpsit  the  money  so  paid  if  a  second  survey  shows  that  the  line  first  drawn 
was  incorrect,  and  that  the  trees  were  thus  cut  from  plaintiff's  own  land.  Mc- 
Arthur  v.  Luce  et  al.  (1880)  43  Mich.  435.  See,  however,  similar  case  of 
Turner  Falls  Lumber  Co.  v.  Burns  (1899)  71  Vt.  354,  in  which  a  recovery 
was  allowed. 

In  West  V.  Houston  (1844)  4  Harrington,  170,  it  appeared  that  the  Messrs. 
West  brought  an  action  against  Houston  for  $90  and  recovered  $44.50,  but 
failed  to  file  a  certificate  for  the  costs — $15.15 — which  was  a  condition  prece- 
dent to  their  recovery.  The  defendant  in  the  original  action,  supposing  the 
certificate  had  been  filed,  paid  the  costs.  On  assumpsit  for  money  had  and 
received,  the  court  said: 

"Where  there  is  a  payment  in  ignorance  of  or  mistake  of  a  fact,  it  may 
be  recovered  back,  unless  the  mistake  arises  from  the  negligence  of  the  party 
to  examine  and  take  notice  of  information  within  his  full  means  of  knowledge. 
Here  the  ]>laintiff  was  party  to  the  vory  record  of  the  judgment  which  he  was 
paying,  which  record  showed  the  fact  he  now  alleges  he  was  ignorant  of." 

This  admirable  little  case  should  l)e  con<;iderod  in  connection  with  the  sub- 
sequent sections  dealing  with  the  question  of  unjust  enrichment  at  plaintiff's 
expense,  and  the  effect  of  plaintifl's  negligence. — Ed. 


40(>  ERKEXS    I'.    NICOLIX.  [BOOK    II. 

kno\vlecl«:^e  of  them  wlikh  defendant  liad.  The  transaction  was  un- 
affected by  any  fraud,  trust,  confidence,  or  the  like.  The  parties 
dealt  with  each  other  at  arm's  lengtli.  Phiintiir  was  not  laboring 
under  any  mistake  of  facts.  He  took  the  deed  and  ]>aid  his  money 
under  a  mistake  of  law  as  to  his  antecedent  existing  legal  rights  in 
the  property,  supposing  that,  according  to  the  proper  legal  construc- 
tion of  the  plat,  the  lots  were  only  80  feet  deep.  However,  under 
tile  doctrine  of  Nicolin  v.  Schneiderhan,  'M:  ^linn.  G3  (;^3  N.  W.  Rep. 
33),  since  decided  by  this  court,  it  is  now  settled  that  a  deed  of  lots 
according  to  this  plat  would  cover  all  the  land  down  to  the  creek, 
under  the  rule  that  distances  must  yield  to  natural  boundaries  called 
for  in  a  deed.  We  are  unable  to  see  tliat  this  case  differs  in  princi- 
ple from  Perkins  i'.  Trinka,  30  Minn.  241  (15  X.  W.  Rep.  115),  and 
Hall  f.  Wheeler,  37  Minn.  523  (35  N.  W.  Rep.  377). 

It  is  unnecessary  to  enter  into  any  discussion  of  the  question  (left 
in  great  confusion  in  tlu'  books)  wlien,  if  ever,  relief  will  i)e  granted 
on  the  ground  of  mistake  in  law  alone,  or  whetiier  there  is  any  dif- 
ference between  mistake  of  law  and  ignorance  of  law,  or  between 
ignorance  or  mistake  as  to  a  general  rule  of  law  and  ignorance  or  mis- 
take of  law  as  to  existing  individual  rights  in  tlie  ])ro|)erty  which  is 
the  subject-matter  of  the  contract.  We  hold  that  money  paid  under 
mistake  of  law  cannot  be  recovered  back  where  the  transaction  is 
unaffected  by  any  fraud,  trust,  confidence,  or  the  like,  but  both  parties 
acted  in  good  faith,  knew  all  the  facts,  and  liad  eciual  means  of  know- 
ing them,  especially  where,  as  was  evidently  the  fact  in  this  case,  the 
transaction  was  intended  to  remove  or  settle  a  question  of  doui)t  as 
to  title.  It  would  be  impossible  to  foresee  all  the  conseiiuences  which 
would  result  from  allowing  parties  to  avoid  their  eontraets  in  such 
cases  on  the  mere  plea  of  ignorance  or  mistake  of  law  alTecting  their 
rights.  It  would  be  dilVicult  to  tell  what  titles  would  stand,  or  what 
contracts  would  be  binding,  if  grantors  and  grantees  were  at  liberty  . 
to  s«'t  up  such  a  f)lea.  This  may  simmu  to  work  inecpiitalily  in  the 
prescmt  case,  but  more  mischief  will  always  result  from  attempting 
to  mould  the  law  to  what  seems  natiiral  justice  in  a  particular  case 
than  from  a  stendv  adherence  to  general  principles. 

Order  reversed.' 

''I'hf  ri'li<"f  !i<lmiiiiH(frc<|  in  r(|iiily  liy  ordi-riii;.'  tlic  ildiviTV.  ciuircllati.in  or 
roforrmition  of  l»'>.'.il  iriHlninifnlH  nn  llw  ^n-(iiiii<l  of  iniHtakr  of  law  or  fact  is 
lioyonil  thi'  w-'ope  of  the  law  of  quaHi-coiitraclH.  It  may  be  nai(l.  Iiowovcr,  (hat 
prior  to  1802,  pnurtn  of  pquity,  following'  i\n>  law  in  thin  rcHpt'<-(,  ailininiHtorod 
rpli»'f.  in  proper  fuxpH,  irrcnprrtivi'  of  the  natnro  of  the  iiiiHtakf;  that  wincp 
thp  cn'*p  of  Milliir  i\  Liunh-v  in  |H02,  roiirl>«  of  (•(piity  havi-  rc^'rct fully  followo<l 
tho  law  (IaitiI  Ki,i.K..\iM)iM)r(iii'H  law)  and  rofiiMod  ri'licf  in  caHcn  of  niislakcH  of 
nicro  law  iintnixi-d  with  fad  Kri-ciiiiin  v.  CiirliH  (ISOJ)  51  Mo.  140. 
Tho  i-fjiiitalili-  ( (inwifTui'  in  rathrr  ncnHitivc  In  fraud,  undiH'  iiiflurnc*',  »•((•,, 
iind    haH   (granted    rdicf.    wlit-n,    in    vi(!W   of    all    the   circuiiistanccM,    it    would 


CllAl'.    11.]  MARTIN    V.    SITWELL.  407 

2.   MISTAKES  OF  FACT  MAY  BE 

(a)  Mistake  as  to  Creation  of  a  Contract. 


MARTIN  V.  SITWELL. 

King's  Bench,  1G92. 

[1  Shower,  156}] 

Indebitatus  assumpsit  for  five  pounds  received  by  the  defendant 
to  the  plaintiff's  use,  non  assumpsit  pleaded. 

Upon  evidence  it  appeared  that  one  Barksdale  liad  made  a  policy  of 
assurance  upon  account  for  five  pounds  premium  in  the  plaintiff's 
name,  and  that  he  had  paid  the  said  premium  to  the  defendant,  and 

be  ''inequitable"  to  dismiss  the  bill.  Indeed,  there  are  not  wanting  ex- 
pressions to  the  effect  that  equity  administers  relief  for  mistakes  of  law 
where  a  court  of  law  would  not,  but  on  the  whole,  it  may  be  said  that 
equity  follows  the  maxim  ignorantia  juris  neminem  excusat,  althou<;h  not  so 
rigidly  as  does  a  court  of  law. 

The  following  cases  will  indicate  chancery  practice:  Livesey  v.  Livcsey 
(1827)  3  Russ.  287  (relief  allowed)  ;  :vrCartliy  v.  Deeaix  (1831)  2  Russ.  &  M. 
014  (relief  allowed  on  mistake  of  law  and  tact);  Dibbs  v.  Goren  (1849) 
11  Beav.  483  (relief  allowed)  ;  Cooper  v.  Phibbs  (1867)  L.  R.  2  Eng.  &  Irish 
App.  149  (in  which  Lord  Westbt.ry  suggests  the  distinction  between  public 
and  private  law  which  has  had  a  theoretical  as  well  as  practical  following)  ; 
Earl  Beauchamp  v.  Winn  (1873)  L.  R.  0  Eng.  &  Irish  App.  223;  Rogers  r. 
Ingham  (1875)  L.  R.  3  Ch.  D.  3-51;  Eaglesfiold  v.  Marquis  of  Londonderry 
(1875)  L.  R.  4  Ch.  D.  093;  Daniell  v.  Sinclair  (1881)  L.  R.  6  App.  Cas.  181; 
7)1  re  Hulkes  (1880)  L.  R.  33  Ch.  D.  552. 

In  the  United  States,  a  single  reference  will  suiVuc  for  illustrati<m : 
Hunt  V.  Rousmaniere's  Adm.  (1828)  1  Pet.  1  (and  the  various  Federal  and 
State  decisions  following  this  ease  as  given  in  2  Rose's  Notes  on  U.  S.  Reports. 
642-049). 

The  following  extracts  may  be  of  service: 

"The  result,  therefore,  is,  that  at  the  time  of  the  agreement  for  the  l.\iso 
which  it  is  tlie  object  of  this  petition  to  set  aside,  the  parties  dealt  with  one 
another  under  a  n)utual  mistake  as  to  their  respective  rights.  The  petitioner 
did  not  suppose  that  he  was,  what  in  truth  he  was,  tenant  for  life  of  the 
fishery.  The  other  parties  acted  upon  the  impression  given  to  them  by  their 
father,  that  he  (tlieir  father)  was  the  owner  of  the  fishery,  and  that  the  fishery 
had  descended  to  them.  In  such  a  state  of  things  there  can  be  no  doubt  of 
the  rule  of  a  court  of  equity  with  regard  to  the  dealing  with  that  agreement. 
It  is  said  ipnoranlia  juris  hand  excusat;  but   in  that   maxim   the  word   jus 

'Reported  also  in  Holt,  25.— Ed. 


408  MARTIN    V.    SITWELL.  [BOOK   II. 

that  Barksdale  had  no  goods  then  on  board,  and  so  tho  policy  was 
void,  and  the  money  to  be  returned  by  the  custom  of  merchants. 

At  the  trial  1  urged  these  two  points.  First,  That  the  action  ought 
to  have  been  brought  in  Barksdale's  name,  for  the  money  was  his,  we 
received  it  from  him,  and  if  the  policy  had  been  good  it  would  have 
been  to  his  advantage;  and  upon  no  account  could  it  l)e  said  to  be 
received  to  Martin's  use,  it  never  being  his  money.  Besides,  here  may 
be  a  great  fraud  upon  all  insurers,  in  this,  that  an  insurance  may  be 
in  another  man's  name,  and  if  a  loss  hai)pen  tlien  the  insurer  shall 
pay,  for  that  some  cestui  que  trust  had  goods  on  board;  if  the  ship 

is  Used  in  the  sense  of  denotinir  general  law,  the  ordinary  hiw  of  the  country. 
But  when  the  word  jus  is  used  in  the  sense  of  denotin;^  a  private  right,  that 
maxim  has  no  application.  Private  right  of  ownership  is  a  matter  of  fact; 
it  may  be  the  result  also  of  matter  of  law;  but  if  parties  contract  under 
a  mutual  mistake  and  misapprehension  as  to  their  relative  and  respective 
rights,  the  result  is,  that  that  agreement  is  liable  to  be  set  aside  as  having 
proceeded  upon  a  common  mistake.  Now,  that  was  the  case  with  these  parties 
— the  respondents  believed  themselves  to  be  entitled  to  the  property,  the 
petitioner  believed  that  he  was  a  stranger  to  it,  the  mistake  is  discovered,  and 
the  agreement  cannot  stand." — Lord  Uestiuuy.  in  Cooper  r.  Phibbs.  fni/ira. 

"With  regard  to  the  objection,  that  the  mistake  (if  any)  was  one  of  law, 
and  that  the  rule  ignorantia  juris  7icmincm  cxcusat,  1  would  observe  upon  the 
peculiarity  of  this  case,  that  the  ignorance  imputable  to  the  party  was  of 
a  matter  of  law  arising  upon  the  doubtful  construction  of  a  grant.  This  is  very 
difTerent  from  the  ignorance  of  a  well-known  rule  of  law.  And  there  are  many 
cases  to  ho  found  in  which  equity,  upon  a  mere  mistake  of  the  law,  without 
the  admixture  of  other  circun>stances,  has  given  relief  to  a  party  who  has 
dealt  with  his  property  under  the  influence  of  .such  mistake.  Tlierefore, 
although  when  a  certain  construction  has  been  put  bj'  a  court  of  law  upon 
a  deed,  it  must  be  taken  that  the  legal  construction  was  clear,  yet  the  igno- 
rance, before  the  decision,  of  what  was  the  true  construction,  cannot,  in 
my  opinion,  be  pressed  to  the  extent  of  depriving  a  person  of  relief  on  the 
ground  that  he  was  bound  himself  to  have  known  beforcliand  how  the  grant 
must  be  construed." — l.<ord  f'liEi.MSFoun,  in  Earl  Heauchamp  r.  Winn,  supra. 

"A  misrepresentation  of  law  is  this:  wlicn  you  state  the  facts,  and  state  a 
cf)nclusion  of  law,  ho  as  to  distingiiish  between  facts  and  law.  Tlie  man 
who  knows  the  facts  is  taken  to  know  the  law;  bjit  when  you  state  that  ns  a 
fact  which  no  doubt  involves,  an  most  facts  do,  n  conclusion  of  law,  that  is 
still  a  statement  of  fact  and  not  a  statement  of  law.  Suppose  a  man  is  asked 
liy  a  tradesman  whether  he  can  give  credit  to  a  lady,  and  the  answer  is, 
'You  n)ay,  she  is  a  single  wcmian  of  large  fortune.'  It  turns  out  that  the  man 
who  gave  that  answer  knew  that  the  lady  had  gr)ne  through  the  ceremony 
of  marriage  with  a  man  who  was  believed  to  lie  a  married  man,  and  that 
she  liad  been  advi-e«!  that  that  marriage  ccrcni'.ny  was  null  !Mid  void,  though 
it  had  not  l>ccn  declared  so  by  any  court,  mik!  it  aflcrwar<ls  turned  mit  they 
were  all  mistaken,  that  the  (Ir-t  marriage  of  llic  man  was  void,  so  tluit  the 
lady  was  married.  He  does  not  tell  the  tradesman  all  these  facts,  but  states 
that  she  is  single.  That  is  a  statinient  of  fact.  If  he  had  told  him  the  whole 
story,  and   all   the  facts,  and  said,  'Now,  you   sec,  the   lady   is  single,'  that 


CHAP.    II.]  MARTIN    /'.    SITWKLL.  401) 

arrive,  then  the  nominal  trustee  shall  bring  a  general  indebitatus  for 
the  premium,  as  having  no  goods  on  board. 

To  all  which  Holt,  Chief  Justice,  answered,  that  the  policy  being 
in  Martin's  name,  the  premium  was  paid  in  his  name  and  as  his  money, 
and  he  must  bring  the  action  upon  a  loss,  and  so  upon  avoidance  of  the 
policy  for  to  recover  back  the  premium.  And  as  to  the  inconveniences, 
it  wouhl  be  the  same  whosoever  was  to  bring  the  action,  and  therefore 
the  insurers  ought  with  caution  to  look  to  that  beforehand. 

Then,  secondly,  I  urged  that  it  ought  to  have  been  a  special  action 
of  the  case  upon  the  custom  of  merchants,  for  this  money  was  once 
well  paid,  and  then  by  the  custom  it  is  to  be  returned  upon  matter 

would  liavo  been  a  misrepresentation  of  law.  But  the  sin^'le  fact  he  states, 
that  the  lady  is  unmarried,  is  a  statement  of  fact,  neither  more  nor  less; 
and  it  is  not  the  less  a  statement  of  fact,  that  in  order  to  arrive  at  it  you  must 
know  more  or  less  of  the  law. 

"Tliere  is  not  a  single  fact  connected  with  personal  status  that  does  not, 
more  or  less,  involve  a  question  of  law.  Tf  you  state  that  a  man  is  the  eldest 
son  of  a  marriage,  you  state  a  question  of  law,  because  you  must  know  that 
there  lias  been  a  valid  marriage,  and  that  that  man  was  the  first-born  son 
after  the  marriage,  or  in  some  countries,  before.  Therefore,  to  state  it  is  not 
a  representation  of  fact  seems  to  arise  from  a  confusion  of  ideas. 

■'It  is  not  the  less  a  fact  because  that  fact  involves  some  knowledge  or 
relation  of  law.  There  is  hardly  any  fact  which  does  not  involve  it.  If  you 
state  that  a  man  is  in  possession  of  an  estate  of  £10,000  a  year,  the  notion 
of  possession  is  a  legal  notion,  and  involves  knowledge  of  law;  nor  can  any 
other  fact  in  connection  with  property  be  stated  which  does  not  involve  such 
knowledge  of  law.  To  state  that  a  man  is  entitled  to  £10,000  consols  involves 
all  sorts  of  law.  Therefore  this  is  a  statement  of  fact,  and  nothing  more; 
and  I  hold  the  argument  to  be  wholly  unfounded  which  maintained  that  it  was 
a  statement  of  law." — Sir  Geouge  Jessel,  M.  R.,  in  Eaglesfield  r.  Marquis  of 
Londonderry,  suprn. 

"Undoubtedly  there  are  cases  in  the  courts  of  common  law  in  which  it  has 
been  held  that  money  paid  under  a  mistake  of  law  cannot  be  recovered,  and 
it  has  been  further  held  that,  under  certain  circumstances,  the  giving  credit 
in  account  may  be  treated  as  so  far  equivalent  to  payment  as  to  prevent 
sums  wrongly  credited  being  made  the  subject  of  set-oflF.  But  in  equity  the 
line  between  mistakes  in  law  and  mistakes  in  fact  has  not  been  so  clearly  and 
sharply  drawn." — Sir  Rokert  P.  Collier,  in  Daniell  r.  Sinclair,  supra. 

"If  the  mistake  of  law,  or  as  to  his  private  right,  be  that  of  one  party  only 
to  a  transaction,  it  may  be  either  that  tlie  mistake  was  induced  or  encouraged 
by  the  misrepresentation  of  the  other  party,  or  that,  though  not  so  induced  or 
encouraged,  it  was  known  to  and  perceived  by  him,  and  was  taken  advantage 
of,  or  it  may  be  that  he  was  not  aware  of  the  mistake.  Whatever  may  be  the 
circumstances  of  the  case,  a  court  of  equity  may,  under  the  peculiar  circum- 
stances of  the  case,  grant  relief.  But  if  it  appear  that  the  mistake  was  induced 
or  encouraged  by  the  misrepresentation  of  the  other  party  to  the  trans- 
action, or  was  perceived  by  him  and  taken  advantage  of.  the  court  will  be  more 
disposed  to  grant  relief  than  in  cases  where  it  does  not  appear  that  he  was 
aware  of  the  mistake."    Kerr  on  Fraud  and  Mistake   (2  Ed.)    470. — Ed. 


410  STEVEXSOX    i.    SNOW.  [BOOK    II. 

happening  ex  pout  facto.  I  argued  if  the  lirst  payment  were  made 
void,  tlien  the  law  will  construe  it  to  be  to  the  plaintitf's  use,  and  so 
an  indebitatus  assH7npsit  will  lie.  But  when  a  special  custom  appoint* 
a  return  of  the  premium,  an  indebitatus  lies  not,  as  for  money  received 
to  the  plaintilT's  use,  but  a  special  action  of  the  case  upon  that  par- 
ticular custom. 

To  which  Holt,  Chief  Justice,  answered  me  with  the  case  adjudged 
by  W.vDiiAM  Wyxdham,  of  money  deposited  upon  a  wager  concerning 
a  race,  that  the  party  winning  the  race  miglit  luring  an  indebitatus 
for  money  received  to  his  use,  for  now  by  this  subsequent  matter  it 
is  become  as  such.  And  as  to  our  case  the  money  is  not  only  to  be 
returned  by  the  custom,  but  the  policy  is  made  originally  void,  the 
party  for  whose  use  it  was  made  having  no  goods  on  board;  so  that 
by  this  discovery  the  money  was  received  without  any  reason,  occasion, 
or  consideration,  and  consequently  it  was  originally  received  to  the 
plaintiff's  use. 

And  so  judgment  was  fo^  the  plaintiff  against  my  client. 


STEVENSON  v.  SNOW. 

Kixo's  Bench,  1701. 

[3  Burrow,  1237.] 

This  was  a  special  case  reserved  at  a  trial  at  Xisi  prius  before  Lord 
Maxsfield  in  London,  upon  an  action  for  money  had  and  received  to 
the  plaintiff's  use,  brouglit  i)y  the  plaintiff  tlie  insured,  against  the 
defendant  the  insurer,  for  a  return  of  part  of  the  premium. 

Case — It  was  an  insurance  upon  a  ship,  at  five  guineas  per  cent. 
lost  or  not  lost,  at  and  from  London  to  Halifax  in  Nova  Scotia, 
warranted  to  depart  with  convoij  from  Portsmouth  for  the  voyage, 
that  is  to  say,  the  Halifax  or  Louis1)ourf/h  convoy. 

liefore  the  ship  arrived  at  Portsmouth,  the  convoy  was  conk. 
Notice  of  this  was  immediately  given  by  the  insured  to  the  under- 
writer: and  at  tlie  same  time,  lie  was  also  desired  citlier  to  make  tlie 
long  insuranci',  or  to  return  part  of  the  premium. 

The  jury  find  that  the  usual  settled  |)remiinii  from  London  lo 
Portsmouth   is  one  and  one-lialf  per  cent. 

They  find  also  tiiat  if  is  usual  for  the  under- writer,  in  such  like 
cases,  to  return  part  of  the  premium:  but  the  (juantum  is  uncertain: 
(and  the  (|uanfum  must  in  its  nature  be  uncertain,  because  it  dei)end^ 
upon  uncertain  circum.stanceft.) 

It  i.'<  stated  that  tlie  plaintiff  made  to  the  defemhint  an  offer  of 
allowing  him  to  retain  one  and  one-half  per  cent,  for  the  risque  he  had 


CliAI'.    II. J  STEVENSON    V.    SNOW.  411 

run  oil  sucli  part  of  tlie  voyage  as  was  performed  under  the  policy, 
viz.  from  London  to  Portsmouth.^ 

Lord  Mansfield,  having  first  stated  the  case,  said, — I  had  not  at 
the  trial,  nor  have  now,  the  least  doubt  about  this  question,  myself. 

These  contracts  are  to  be  taken  with  great  latitude;  the  strict 
letter  of  tlie  contract  is  not  to  be  so  much  regarded,  as  the  object  and 
intention  of  it. 

Equity  implies  a  condition  "That  the  insurer  shall  not  receive  the 
price  of  running  a  risque,  if  he  runs  none." 

This  is  contract  without  any  consideration,  as  to  the  voyage  from 
Portsmouth  to  Halifax:  for  he  intended  to  insure  tliat  part  of  the 
voyage  as  well  as  the  former  part  of  it;  and  has  not.  Consequently, 
the  insured  received  no  consideration  for  tliis  proportion  of  his 
premium.  And  then  this  case  is  within  the  general  principle  of  actions 
for  monies  had  and  received  to  the  plaintiff's  use. 

I  do  not  go  upon  the  usage:  for  the  usage  found  is  only  "That  in  like 
eases,  it  is  tisual  to  return  a  part  of  the  premium;  without  ascertain- 
ing what  part." 

//  the  risque  is  not  run,  though  it  is  by  the  neglect  or  even  the 
fault  of  the  party  insuring,  yet  the  insurer  shall  not  retain  the 
premium. 

It  has  been  objected,  "That  the  voyage  being  begun,  and  part  of 
the  risque  being  already  run,  the  premium  can  not  be  apportioned." 
But  I  can  see  no  force  in  this  objection.  This  is  not  a  contract  so 
entire  that  there  can  be  no  apportionment.  For  there  are  two  parts  in 
this  contract;  and  the  premium  may  be  divided  into  two  distinct 
parts,  relative,  as  it  were,  to  two  voyages. 

The  practice  shews,  "That  it  has  been  usual,  in  such  like  cases,  to 
return  a  part  of  the  premium ;  though  the  quantum  be  not  ascertained. 
And  indeed  the  quantum  must  vary,  as  circumstances  vary:  so  that 
it  never  can  have  been  fi.xed  with  any  precise  exactness. 

But  though  tlie  quantum  has  not  been  ascertained;  yet  the  principle 
is  agreeable  to  the  general  sense  of  mankind. 

Mr.  Justice  Denison  was  of  the  same  opinion. 

It  is  most  equitable,  that  the  defendant  should  only  retain  the 
premium  for  such  part  of  the  voyage  as  he  has  run  the  risque  of. 
The  insured  has  a  right  to  have  the  other  part  restored  to  him.  And 
this  is  agreeable  to  the  general  principle  of  actions  for  money  had 
and  received  to  the  plaintiff's  use:  where  the  defendant  had  no  right 
to  retain  it,  he  must  refund  it. 

Mr.  Justice  Foster  declared  himself  to  be  of  the  same  opinion. 
There  is  no  consideration  for  the  remainder  of  the  premium ;  for  the 
voyage  from  Portsmouth  to  Halifax,  wherein  no  risque  was  run  by  the 

'Arguments  of  counsel  (Yates  for  plaintiff  and  Wedderburn  for  defendant), 
omitted. — Ed. 


412  STEVEXSOX    V.    SNOW.  [BOOK    II. 

insurer,  wlio  only  insured  the  vova^e  with  convoy :  therefore  he  lias  no 
right  to  retain  the  premium  for  this. 

Mr.  Justice  Wilmot  declared  his  concurrence  most  clearly  and 
strongly.  He  said  these  kinds  of  contracts  are  by  the  writers  on  this 
head,  called  contractus  innontinati:  and  the  rule  which  they  lay  down 
concerning  them  is,  "That  they  are  to  be  determined  secundum  honum 
et  (Fquum." 

The  jury  had  here  found  usage  "to  return  part  of  the  premium,  in 
such  cases:"  which  is  a  strong  proof  of  the  ecjuity  of  the  thing.  And 
nothing  can  be  more  just  and  reasonable. 

//  the  risque  was  once  begun,  the  insured  shall  not  deviate  or 
return  back,  and  then  say  "I  will  go  no  farther  under  this  contract, 
but  will  have  my  premium  returned." 

But  upon  this  policy,  there  are  two  distinct  points  of  time,  in  effect 
two  voyages,  which  were  clearly  in  the  contemplation  of  the  parties: 
and  onJi/  one  of  the  two  voyages  was  made;  the  other,  not  at  all 
entered  upon.  It  was  a  conditional  contract:  and  the  second  voyage 
was  not  begun.  Therefore  the  premium  must  he  returned :  for  upon 
this  second  part  of  the  voyage,  the  risque  never  took  place  at  all. 

This  is  agreea])le  to  what  the  writers  on  this  subject  lay  down;  and 
is  the  right  and  justice  of  the  case. 

Per  Cur',   unanimously — 

Let  the  postea  be  delivered  to  the  plaintiff.^ 

'If,  hnwovpr,  the  contr.ict  is  entire  and  the  risk  has  attaclied,  recovery  is 
not  allowed:  TjTie  r.  Fletcher  (1777)  2  Cowp.  fiGO;  Loraine  v.  Tonilinson 
(17S1)  2  Doup.  585;  liernon  v.  Woodbridpc  (1781)  2  Doug.  781— all  by  Lord 
Mansfield.  And  see  for  observations  on  the  principal  case,  Rothwell  r.  Cooke 
(17II7)    1   B.  &  P.  172. 

In  Feise  r.  Parkinson  (1812)  4  Taunt.  (140,  the  court  allowed  tlie  premium 
to  be  recovered  in  the  count  for  mcmey  had  and  received,  (Jiniis,  (".  .1..  saying: 
"Where  there  is  fraud,  there  is  no  ret\irn  of  jtrcmium,  but  upon  a  mere  mis- 
representation without  fraud,  where  the  risk  never  attached,  there  iiiu>t  be 
a    return   of   premium." 

In  Martin  r.  Sit  well,  ante,  the  goods  insured  were  not  on  board;  in  the 
jirinri|>al  case,  the  risk  was  not  r\iii,  or  at  least  only  for  part  of  the  voyage 
froiri  London  to  Portsmouth. 

In  the  case  f»f  McCulloch  r.  Hoyal  Kxchange  .Assurance  ("o.  (1H1:5)  H  Campb. 
40(i,  it  ii[)[ieared  tliat  the  j>laiiililT  circclcd  a  policy  of  insurance  on  shiji  and 
freight  ;  that  the  v«>yage  was  made  in  safety  an<l  that  freiglit  was  earned. 
It  further  a[»peared  that  the  plaintiff  had  no  insurable  interest  on  accoiint  of 
n  defe«'t  in  his  title  to  the  Hhip.  On  an  action  for  money  had  and  received  to 
re<'<ivrT  the  ()remium,  the  judgment  was  for  the  defendant.  See  Kcener's 
Treatise,  IJH,  for  adverse  criticism,  ami  see  also  Farmers'  Miit.  Ins.  Co.  »-. 
Turn|)ike  Co.  (I8HH)  122  Pa.  St.  .'J7 ;  New  linll.  Turni)ike  Co.  i'.  Farmers' 
Ins.  Co.    (IK!»1)    144    Pa.   St.  541. 

In  Turner  Falls  Lumlter  Co.  r.  Hiirns  (IHOO)  71  Vt.  :\'ii.  the  plaintiff  con- 
tracted to  purcha-ie  an<l  did  actually  liuy  from  tin-  defcmlant   Iuml)er  cut   from 


CHAP.    II.]  KILGOUR   V.    FIXLYSON.  413 

KILGOUR  V.  FIXLYSOX,  GALBREATH  &  HARPER. 

Common  Pleas,  1789. 

[1  Henry  Blackstone,  155.] 

Indorsee  against  the  ostensible  indorsers,  who  also  appeared  to  be 
the  drawers  of  a  bill  of  exchange.  Monc}'  paid,  money  had  and  re- 
ceived, account  stated.     Verdict  for  the  plaintiff. 

The  circumstances  of  this  case  were  as  follows: — 

The  plaintiff  was  a  warehouseman  and  factor,  the  defendants  were 
also  warehousemen  and  factors  in  partnership,  from  Midsummer  1785, 
to  the  28th  of  July,  1787,  when  the  partnership  was  dis.solved,  and 
notice  of  the  dissolution  given  in  the  Gazette  as  under, — 

Notice  is  hereby  given,  that  the  copartnership  between  Thomas 
Finlyson,  Thomas  Gall)reath,  and  Henry  William  Harper,  of  Bow 
churchyard,  warehousemen,  under  the  firm  of  Finlyson.  Gall)reath.  and 
Harper,  and  also  at  Glasgow,  under  the  firm  of  Henry  William  Harper 
and  company,  was  by  mutual  consent  dissolved  this  day ;  all  demands 
upon  the  above  firm  will  be  paid  by  Thomas  Finlyson  of  Bow  church- 
yard, who  is  impowercd  to  receive  and  discharge  all  debts  due  to  the 
said  copartnership. 

Witness  our  hands,  this  28th  day  of  July,  1787, 

Thomas  Finlyson, 
Thomas  Galbheatii, 
Henry  William  Harper. 

At  the  time  of  the  above  dissolution  one  Scott  was  indebted  to  the 
partnership  in  £758  and  the  partnership  indebted  to  Sterling  Douglas 
&  Co.  in  £890.  On  the  31st  of  September,  1787,  Finlyson  drew  the 
bill  in  question  in  the  name  of  the  late  partnership,  on  Scott,  payable 
on  the  23d  of  Xoveml)er  following,  for  £304  2s.,  which  Scott  accepted. 
On  the  9th  of  October,  Finlyson  indorsed  it,  in  the  name  of  the 
partnership,  to  the  plaintiff,  who  discounted  it,  by  giving  his  o^^ti 
promissory  note  for  £304  3s.  6d.  payable  on  the  25th  of  November 
(the  difference  of  Is.  fid.  being  on  account  of  the  note  being  due  two 
days  later  than  the  bill).  This  note  of  the  ])laintiff*s  was  indorsed  by 
Finlyson  to  Sterling  Douglas  &  Co.,  who  discounted  it,  and  received 
the  money  they  had  advanced  by  so  discounting  the  note,  back  again 
from  Finlyson,  in  jiart  of  payment  of  the  del)t  owing  to  them  from 

his  own  land  in  tho  bcliof  tiiat  it  was  the  defendant's.  The  mistake  wa^*  due 
to  defendant,  and  the  court  allowed  a  recovery.  In  the  insurance  cases  there 
was  no  risk,  hence  no  henefit ;  here  there  was  no  benefit  to  plaintiff  in  paying 
for  his  own  property  and  the  recovery  was  properly  allowed. — En. 


414  KILGOUR    V.    FINI.YSON'.  [BOOK    II. 

the  partnership.  When  the  note  became  due  the  plaintiff  paid  it  to 
Sterling  Douglas  &  Co.  Two  days  before  Scott's  bill  became  due 
Finlyson  took  it  up,  and  gave  in  lieu  of  it  another  bill  to  the  plaintiff, 
accepted  by  Lee,  Strachan,  &  Co.,  but  did  not  take  back  Scott's  bill. 
Afterward.-^  Lee,  Strachan,  &  Co.'s  l)ill  not  bcin^^  paid,  and  Finlyson 
having  become  a  bankrupt,  the  plaintiff  brouglit  this  action  against  all 
the  partners  on  Scott's  bill,  which  remained  in  his  hands,  and  obtained 
a  verdict. 

A  rule  being  granted  to  show  cause  why  this  verdict  should  not  be 
set  aside,  and  a  new  trial  granted. 

Adair  and  Bond,  Serjts.,  showed  cause.  Le  Blanc  and  Lawrence, 
Scrjts.,  for  the  rule.* 

Lord  LorGiiBORorGii.  I  was  of  opinion  at  the  trial,  that  there  was 
an  equity  in  favor  of  the  plaintiff,  the  money  arising  from  his  note 
being  de  facto  applied  for  the  benefit  of  the  partnership,  and  the 
authority  from  the  other  partners  giving  him  power  to  discharge  their 
debts.  But  I  am  now  convinced  that  1  was  mistaken.  Consider  the 
nature  of  this  transaction:  Finlyson  applies  to  Kilgour  to  discount 
the  bill  accepted  by  Scott,  and  in  part  of  the  discount  takes  a  prom- 
issory note  from  him  ;  Kilgour,  before  Scott's  bill  became  due,  changes 
it  with  P'inlyson  for  another,  accepted  by  Lee,  Strachan,  &  Co.,  returns 
that,  and  takes  Scott's  bill  back  again.  Now  all  this  was  carried  on 
without  any  idea  of  the  former  partners  being  bound  by  it.  On  the 
10th  of  October,  long  before  the  plaintiff's  note  was  due,  the  defend- 
ant a{)plied  to  Sterling  Douglas  &  Co.  to  discount  it,  who  accordingly 
did  discount  it,  but  received  the  money  back  again  in  part  of  payment 
of  tlusir  debt  owing  from  the  partnershij).  When  this  note  became 
due  the  plaintiff  paid  it  to  Sterling  Douglas  &'  Co.,  but  at  that  time  no 
debt  was  owing  to  them  from  the  partnership;  the  payment  therefore 
of  the  plaintiff  was  not  a  payment  to  the  use  of  the  partnership. 
Though  the  money  raised  by  discounting  his  note  before  it  was  due 
was  in  fact  paid  in  discharge  of  a  partnership  del)t,  yet  lie  cannot 
follow  the  monev  through  all  the  applications  of  it  made  by  Finlyson. 

Hk.vtii  and  Wilson,  .Justices  (Mr.  .Iiistice  (lori.i)  being  absent),  of 
the  same  o[)inion. 

Rule  absolute  for  a  new  triaV 

'.■\r;.nniuiitM  nf  coiiri'^c'l  iin-  oinillcd.  —  Kn. 

"'If  the  irioncy,  f^ooclM,  or  other  c-«)nHi(lfr;ition,  furniHhod  by  a  rroditor  has 
lw*»n  actually  applied  for  the  Ix'nelit  of  tlie  linn  in  llie  windinj,'  up  of  the 
partnership  afTairH,  and  the  creditor  iw  precluded  by  knowledjjo  or  public 
notice  from  charKinp  the  partnerH  upon  the  expresH  contract,  he  ou^hl  to  be 
allowed  to  recover  what  he  has  furninhed,  or  its  e<piivalent,  upon  the  prin- 
ciple that  no  one  hlumld  be  permitted  dishonc.Htly  to  enrich  himself  at  tho 
I'XjtenHe  of  another.  This  i)rinciple  was  rccufrnizcfl  in  rrudhomme  v.  Henry, 
.I  Iji.  An.  700  (see  alsf)  Uoifcrnu  r.  i\\\f-T\u\n-T.  11  l.a.  .\n.  47H,  470)  ;  White  v. 
Tudor,  32  Tex.  758.     Rut  Hee  contra,  Abel  r.  Sutton,  3  Ksp.    lOH,    {aemhle)  ; 


CHAI*.  11.  J      VAX  DEUSEN,  ET  AL.  V.    BLUM,  ET  AL.  415 

VAN  DEUSEN  ET  AL.  v.  BLUM  ET  AL. 

Supreme  Judicial  Court  of  Massachusetts,  1836. 

[18  Pickering,  229.] 

This  was  an  action  of  debt.  The  declaration  contained  two  counts 
upon  a  special  contract  under  seal,  a  third  upon  a  quantum  meruit 
for  labor  performed,  and  a  fourth  upon  a  quantum  valebant  for 
materials  furnished.  The  defendant  Blum  was  defaulted;  the  other 
defendant,  Thouvenin,  appeared,  and  to  the  first  two  counts  he  pleaded 
non  est  factum,  and  to  the  third  and  fourth,  nil  debet. 

At  the  trial,  before  Morton,  J.,  the  plaintiffs  produced  tlie  contract, 
purporting  to  be  between  themselves  of  tlie  one  part,  and  Blum  and 
Thouvenin  of  the  other  part.  Blum  and  Thouvenin  were  partners, 
and  were  so  described  in  the  contract.  The  plaintiffs  had  duly  exe- 
cuted the  contract,  and  Blum  also  had  executed  it  by  sifrning  the 
company  name  "J.  C.  Thouvenin  &  Co.,"  and  annexing  a  seal.  There 
was  no  evidence  that  he  had  any  authority  to  execute  the  contract 
in  behalf  of  Thouvenin,  or  that  Thouvenin  was  present  at  the  execu- 
tion or  ever  ratified  it. 

The  judge  ruled,  that  the  instrument  could  not  go  in  evidence  to  the 
jury  as  the  deed  of  Thouvenin. 

The  contract  was  for  building  a  dam  by  the  plaintiffs  for  Blum  and 
Thouvenin,  across  the  Housatonic  Kiver;  which  was  a  purpose  within 
the  scope  of  the  partnership  business.  The  plaintiffs  offered  to  prove 
that  they  built  the  dam  and  furnished  the  materials  therefor,  and  they 
claimed  against  Thouvenin,  under  the  third  and  fourth  counts,  what 
their  work  and  materials  were  worth.  Thom^enin  objected  to  the 
admission  of  thi^  evidence,  and  contended  that  there  being  an  express 
contract  e.Vecuted  by  the  plaintiffs  and  BIiYm.  and  that  contract  being 
in  force  and  binding  upon  Blum7~the  plaintiffs'  remedy  was  on  that 
instrument   alone. 

But  the  judge  ruled,  that  the  plaintiffs  might,  notwithstanding  that 
contract,  recover  under  the  third  and  fourth  counts,  upon  an  implied 
promise,  for  all  the  materials  furnished  and  labor  performed  before 
the  dissolution  of  the  partnership. 

Thouvenin  and  Blum  di^;solved  partnership  on  the  10th  of  Novem- 
ber, 1832,  and  all  the  partnership  property  was  conveyed  to  Blum, 
and  he  agreed  to  pay  all  the  partnershiji  debts.     The  dam  was  not 

Kilpour  V.  Finlyson,  1  H.  Bl.  155:  Bowntaii  r.  Rlrdpett.  2  ]\Iot.  .'^08:  Haven  r. 
Goodol,  1  Disnoy.  2() ;  McCowin  r.  Culibisnii.  ',•!  Pa.  ;?5S."  Ames'  Cases  on 
Partnership,  544.  last  paragraph. 

The  cases  are,  however,  genrally  in  accord  with  the  principal  case  on  this 
point — Ed. 


41G  VAX  DEUSEX,  ET  AL.  V.    ULIM,  ET  AL.      [BOOK  II. 

finished  until  after  the  lOtli  of   November,  aiul   for  the  work  done 
previously  to  that  day  the  jury  found  a  verdict  against  Thouvenin. 

The  questions  arising  upon  these  facts  were  reserved  for  the  con- 
sideration of  tlie  whole  court. 

MoRTOX,  J.,  delivered  the  opinion  of  the  Court.  De])t,  as  well  as 
assumpsit,  will  lie  on  a  quantum  meruit  or  a  quantum  valebant.  1  Chit 
PI.  107;  2  Wms.'s  Saund.  117  .6,  note;  Union  Cotton  Manufactory  v. 
Lohtlell.  13  Johns.  4(!2.  Hence  these  counts  may  well  W>  j<Mned  with 
counts  upon  a  specialty.  Smith  v.  First  Congr.  Meetinghouse  in 
Lowell,  8  Pick.  178.       "^ 

It  was  long  doubted  whether  n  mnj\,  who  performed  work  inconse- 
(lucnce  of  a  special  contnift,  but  l^ni  JTi  conformity  to  it,  could  n-c-rn't^ 
foc-tlie  serviced,  rendered  and  ^uulermls, f ou n<l .  There  are  many  and 
conflicting  authorities  on  the  subject.  They  have  all  been  carefully 
examined  and  compared,  and  the  rule  established  by  our  court,  as 
we  think,  according  to  the  principles  of  justice  and  the  weight  of 
authority.  Ile^ho  gains  the  labor  and  acquires  the  pro])erty^of 
another,  must  make  reasonable  compensjition  for  tlic-same.  Hayward 
f.^Xeonard,  1  Pick.  181  ;  Smith  v.  First  Congr.  ^leetinghouse  in 
Lowell,  8  Pick.  178;  Munroe  v.  Perkins,  9  Pick.  21)8;  Brewer  r. 
Tyringham.  12  Pick.  547. 

Tiie  general  authority  derived  from  the  relation  of  partnersliip  does 
not  empower  one  partner  to  seal  for  the  company  or  to  bind  them  by 
deed.  It  requires  special  power  for  this  purpose.  See  Cady  t\  Shep- 
herd, 11  Pick.  400,  and  the  cases  there  cited.  Here  was  no  evidence  of 
any  previous  authority  or  subsequent  ratification.  The  sealed  instru- 
ment executed  by  Jmc  partner  in  the  nnme  nf  iho  firm  nut^liT'3)inil 
hinv-l>ut  could  not  be  obligatory  upon  th+* -coiufoiiy.  .Vnd  iilthouj^li 
th^j^plaintifTs  miglit  have  had  a^jrcmedy  upon  tlie  contract  against 
the  party  wlio  cxoGuted-4t^  yet  ili£^_jycre  not  Ijound  to  rely  upon 
him  alone. 

The  services  never  were  rendered  eitlier  in  conformity  to  or  under 
such  an  agreement.  The  plaint ilfs  undertook  to  execute  a  contract 
between  them.selves  and  the  company.  Rut  tbcrc  being  na-ainjL-fon- 
tract  in  existence^^th-C-V^arc-hift  to  r«;of;t-to  their  ef}uit4ihlc-cL*+ni  for 
tH??tFTabor  and  materials.  So.  far  as  they  benedted  the  C()mj)any, 
the  plaintiffs  are  entitled  to  recover  against  tliem.  * 

Judgmfnl  on  the  verdict} 

'"ff  II  firm  dfod,  oxociitcd  williont  tlio  authority  of  all  the  parliiox.  and 
thcrpforp  inoporntivp  either  an  a  Hpecialty  or  ns  a  Himple  ron<ract  of  the  finn, 
in  j/iven  in  exehnnjjo  for  money,  fioodn.  or  tlie  like,  tlie  (Inn  in  e(piital»ly 
liable  to  the  extent  of  the  value  re<-eived,  and  may  accordin>;ly  he  80  charged 
upon  a  (|iiaHt'fonlraet.  MeCaiilay  r.  .lenney,  f)  Ilount.  'i'l  (srmhir)  ;  Walsh  r. 
I,ennf)n.  1»H  III.  27:  Daniel  r.  Toney.  2  .Met.  (Ky.)  ri2.'J ;  Ih-rnianos  r.  Dnvip- 
neaiid.  10  I,a.  .\n.  114;  Van  DeUHen  r.  liliim.  IH  Tick.  22!);  Moore  r.  Stcvenn, 
(10  .MiHH.  HOI),  810    {tivmbh)  ;    Despateh   Line  r.   llellomy,    12   N.    II.   205,   235 


CHAP.  II  ]  REID    V.    UIGBY    &    CO,  417 

EEID  V.  RIGBY  &  CO. 

Queens  Bench  Division,  1894. 

[Law  Reports  (1894)  2  Queens  Bencli,  40.] 

Appeal  by  the  plainti fi"  from  the  decision  of  the  judge  of  the 
Westminster  County  Court,  in  favour  of  the  defendants,  in  an  action 
bi'omzht  by  the  plaintiff,  first,  to  recover  £20  on  a  cheque,  and, 
secondly,  to  recover  the  same  sum  as  money  received  by  the  defend- 
ants to  the  use  of  the  plaintiff. 

The  cheque  in  question  was  signed  "Rigby  &  Co.  per  procuration  of 
J.  Allport,  manager,"  and  was  drawn  on  May  21,  1892.  The  claim 
was  made  after  Allport's  death.  It  was^  found  liy  the  '"^"li-y  on^^rt 
judge  that  Allport  had_been  the  manager  of  the  defend nnta'  firm,  and 
had  authority  to  draw  on  their  ban.kingL,£LCCOunt  for  the  purposes  of 
their  business,  but  had  no  anthority  to  overdraw  their  account,  which 
hoTia'd^ overdrawn,  or  to  l)orrow  money  on  their  behalf.  Ti  was  also 
found  that  Allport  had  borrowed  this  sum  of  £20  for  his  own  purposes, 
in  order  to  replace  money  of  the  defendants  which  he  himself  had 
abstracted.  The  evidence  shewed  that  Allport  had  o1)tained  the 
cheque^from  the  plaintiff  by  a  statement  that  he  was  short  of  money, 
and  wanted  the  money  to  pay  the  wages  of  the  defendants'  workmen, 
and- it  was  shewn  that  he  had  paid  the  money  into  the,  defendants' 
a^ccount  at  their_bank,.  and  had  used  it  to  pay  the  wages  of  their 
workmen^ 

Charles,  J.  This  action  is  brought  in  a  twofold  form:  first,  on 
a  cheque  given  by  Allport,  the  defendants'  manager,  to  Reid,  the 
plaintiff,  as  security  for  a  sum  of  £20  borrowed  by  Allport  from  the 

(seniblc)  ;  Wharton  v.   Woodburn,  4  Dev.  &  B.  507;  Doliiis  ;•.  Cawthorn,  2  Dov. 
90  (scrnble)  ;  Osborne  v.  High  Shoals  Co.,  5  Jones  (N.  Ca.)   177. 

"But  see  contra,  Morris  t\  Jones,  4  Harringt.  428;  Spear  r.  Gillet,  1  Dev. 
Eq.  466;  Bond  v.  Aitkin,  6  Watts  &  S,  165;  Waugh  v.  Carriger,  1  Yerg,  31; 
Gait  1',  Calland,  7  Leigh.  ,594."  Ames'  Cases  on  Partnership,  489  (last  two 
paragraphs) . 

In  Benham  v.  Emery  (1887)  4G  Hun.  1,56,  the  defendant's  husband  entered 
into  a  contract  under  seal  with  plaiiitilY  by  which  the  latter  agreed  to  do  certain 
carpentering  and  to  furnish  lumber  necessary  to  erect  a  house  on  defendant's 
land  for  the  sum  of  $1,800.  Mrs.  Emery  was  not  a  party  to  the  contract,  and 
was  held  not  to  be  bound  by  its  terms;  but  the  court  permitted  the  plaintiff 
to  pass  by  the  written  agreement  and  recover  in  quasi-contract  for  the  work 
and  labor  done,  and  materials  furnished,  of  which  the  defendant  had  had  the 
benefit.  See  also,  Graves  v.  Smith  (1893)  7  Wash.  14;  Jewell  v.  Schroepell 
(1S2."))  4  Cow.  564;  City  Trust  Co.  r.  American  Brewing  Co.  (1902)  70  App. 
Div.   (N.  Y.)   511;  O'Brien  r.  Fowler   (18S7)   67  Md.  5()1.— En 


418  REID    V.    PxIGBY    &    CO.  [BOOK    II. 

plaintiff  in  the  name  of  the  defendants;  and,  secondly,  for  the  same 
sum  of  £20  as  money  received  to  the  use  of  the  plaintiff.  As  to  the 
claim  on  the  cheque,  it  appears  that  Allport  was  the  general  manager 
of  the  defendants,  and  as  such  had  express  authority  to  draw  on  their 
banking  account  for  the  ])urposes  of  their  business,  and  he  had 
also  a  general  authority  to  pay  money  in  to  the  bank  to  their  account. 
No  question  arose  as  to  any  special  authority.  Allport  told  the 
plaintiff  that  he  was  short  of  cash  and  wanted  money  to  pay  the 
workmen's  wages,  and  he  gave  a  cheque  signed  per  procuration  for 
Rigby  &  Co.,  the  defendants.  On  the  face  of  it  that  cheque  con- 
veyed an  intimation  to  the  plaintiff  that  Allport,  as  the  agent  of  the 
defendants,  had  only  a  limited  authority  to  sign.  This  is  expressly 
provided  by  the  Bills  of  Exchange  Act,  1882,  4.5  &  46  Vict.  c.  61,  s.  25. 
As  a  matter  of  fact,  tlie  defendants'  banking  account  was  at  that  time 
overdrawn,  and  the  county  court  judge  has  found  that  Allport  had 
no  authority  to  overdraw  that  account;  and  he  has  also  found — and 
we  must  accept  his  finding  on  this  point  as  correct — that  Allport  Jiad 
no  authority  to  borrow  money  for  the  defendants^  But  he  did 
borrow-jnoney,  and  Jiaving  got  the  money  he  paid  it  in  to  the^defend- 
ants'  banking  account.  I  say  that  this  is  so  because  the  cash-book, 
which  I  have  carefully  examined,  leaves  no  doubt  in  my  mind  that 
the  £20  found  its  way  into  the  defendants'  banking  account.  It 
appears  that  a  sum  of  £38  2s.  was  paid  in,  whirb  enabled  x\llport  to 
draw  a  cheque  for  £30  in  order  to  discharge  the  workmen's  wages. 
Therefore  Allport  paid  the  money  for  the  purpose  of  the  business. 
In  my  opinion,  the  true  inference  is  that  the  money  which  was 
borrowed  for  wages  was  paid  in  to  the  defendants'  banking  account, 
and  was  applied  in  payment  of  wages.  The  question  is  whether  the 
plaintiff  can  recover  that  money  from  the  defendants.  It  is  contended 
on  behalf  of  the  defendants  tluit  he  cannot,  on  tlie  findings  of  the 
county  court  judge  to  which  I  have  referred,  and  also  on  a  fiirtluT 
finding,  that  Allport  borrowed  the  money  for  bis  own  purposes,  in 
order  to  replace  money  belonging  to  the  defendants  which  he  had 
abstracted.  I  was  at  first  somewhat  embarrassed  by  that  finding;  but 
on  consideration  I  have  come  to  the  conclusion  that  it  does  not  affect 
the  legal  position  of  the  parties.  Allport  has  paid  the  money  in  tO' 
the  defendants'  banking  account;  and  eiiher  it  is  there  now  or  it  has 
been  paid  in  wages  to  the  defendants'  workmen.  The  latter,  I  think, 
is  the  true  inference;  but  in  either  case  I  tlimk  the  result  is  the 
same.  Suppose  that  .Allport  bad  paid  the  money  direct  to  th(>  work- 
men, and  bad  jisked  tbe  defendants  to  repay  him,  could  the  defend- 
ants have  refused?  It  seems  to  me,  that  if  the  wages  had  been  so 
paid,  then,  when  the  defendants  had  discovered  the  fact  of  payment, 
they  must  have  either  repudiated  such  payment  or  adopted  it.  By 
accepting  the  benefit  of  tbe  payment  tbey  would  M(lo[)t  it.  It  comes  to 
this,  that  either  the  workmen  have  been  paid  or  they  have  not.     If 


CHAP.  II.]  REID    V.    KIGBY    &    CO.  419 

they  have  been  paid,  the  money  so  paid  was  in  contemplation  of  law 
money  received  by  the  defendants  to  the  use  of  the  plaintiff ;  for  either 
they  have  ratified  the  payment,  or,  if  the  money  is  still  in  their  bank, 
it  is  the  money  of  the  plaintiff.  I  am  of  opinion  that  the  decision  in 
Marsh  v.  Keating,  1  Bing.  N.  C.  198,  supports  this  view.  In  that 
case  the  money  sought  to  be  recovered  was  the  proceeds  of  the  fraud  of 
Fauntleroy.  The  defendants,  who  had  been  Fauntleroy's  partners, 
knew  nothing  of  the  fraud ;  but  the  judges  who  advised  the  House  of 
Lords  expressed  a  unanimous  opinion  that  it  must  be  treated  as  money 
received  by  the  defendants  to  the  use  of  the  plaintiff,  because  it  came 
into  the  possession  of  the  defendants.  The  same  view  applies  to  the 
present  case.  Further  than  this,  the  defendants  have  since  had  an 
opportunity  of  finding  out  that  the  money  had  been  paid  in  to  their 
account.  For  these  reasons  I  am  of  opinion  that  this  sum  of  £20  was 
money  received  by  the  defendants  to  the  use  of  the  plaintiff.  I  will 
not  say  what  the  result  might  have  been  if  the  money  had  been  paid 
in  to  the  bank  under  some  binding  contract  between  Allport  and  the 
defendants.  However  it  was  paid  in,  it  has  found  its  way  into  the 
possession  of  the  defendants,  and  therefore  it  was  money  received  to 
the  use  of  the  plaintiff,  which  he  is  entitled  to  recover,  and  the  appeal 
must  be  allowed. 

Collins,  J.  I  am  of  the  same  opinion.  I  need  hardly  say  that 
I  should  not  differ  from  the  view  taken  by  the  learned  county  court 
judge  without  full  consideration;  but  in  this  case  I  am  satisfied  that 
the  judgment  is  wrong.  The  money  in  question  was  obtained  from 
the  plaintiff  on  the  security  of  a  cheque  signed  by  Allport  per  pro- 
curation for  the  defendants,  Eigby  &  Co.  By  the  terms  of  s.  25  of 
the  Bills  of  Exchange  Act,  1882,  it  was  apparent  on  the  face  of  the 
cheque  that  the  authority  of  the  person  signing  the  cheque  was 
limited.  I  can  entertain  no  doubt,  on  examination  of  the  account, 
that  this  sum  of  £20  found  its  way  to  the  credit  of  the  defendants' 
account  at  the  bank.  The  question  for  our  determination  is  whether 
the  plaintiff  can  maintain  an  action  to  recover  that  sura.  If,  instead 
of  giving  a  cheque,  Allport  had  asked  the  plaintiff  to  pay  the  work- 
men, and  the  plaintiff  had  done  so,  could  not  the  plaintiff  have  main- 
tained an  action  against  the  defendants  to  recover  what  he  had  paid? 
I  am  of  opinion  that  he  could ;  for  what  he  did  would  have  been  a  pay- 
ment of  the  defendants'  debt.  On  that  state  of  facts,  therefore,  the 
plaintiff  would  be  entitled  to  recover.  Then  does  it  make  any  differ- 
ence that  the  money  went  into  the  bank?  I  think  not;  for  the  effect 
of  the  transaction  could  only  be  rendered  different  if  the  money  were 
paid  in  by  virtue  of  some  contract  which  was  binding  as  between 
Allport  and  the  defendants;  but  there  was  no  such  contract,  and 
there  had  been  no  change  of  position  before  the  defendants  knew  the 
facts.  The  question  is  whether,  now  that  they  have  found  out  All- 
port's  defalcations,  the  defendants  can  keep  the  plaintiff's  money.     I 


420  FIUST    BAPTIST    CHURCH    V.    CAUGIIEY.  [BOOK    II. 

am  of  opinion  that  the  cases  which  have  heen  referred  to  in  argu- 
ment, ^larsli  V.  Keating,  1  Bing.  X.  C.  198,  and  Calland  v.  Loyd, 
(5  M.  &  W.  2G,  go  the  full  length  of  shewing  lliat  tliev  cannot,  and,  in 
my  opinion,  the  present  is  an  a  fortiori  case. 

Appeal  allowed.    Leave  to  appeal  granted. 


FIRST  BAPTIST  CHURCH  OF  ERIE  v.  CAUGHEY  ET  AL., 
ADMINISTRATORS. 

Supreme  Court  of  Pfa'xsylvaxia,  1877. 

[85  Pennsylvania  State,  271.] 

Error  to  the  Court  of  Common  Pleas  of  Erie  County:  of  October 
and  Xovember  term  1877,  Xo.  145. 

Assumpsit  by  S.  S.  Caughey  and  H.  B.  Fleming,  administrators 
of  Joseph  Xeeley,  deceased,  to  recover  the  amount  unpaid,  with  inter- 
est, on  the  following  note : — 

$900.  Erie,  December  24,  1867. 

On  the  1st  day  of  February,  1809,  we  promise  to  pay,  to  the  order 
of  Joseph  Xeeley,  nine  hundred  dollars;  it  being  for  the  use  of  First 
Baptist  Church.     Value  received. 

W.  J.   F.  LlDDF.LL, 

Horace  L.  White, 
James  D.  Ross, 
Samuel  Z.  Smith, 
Trustees  of  the  First  Baptist  Church.  Erie.  Penna. 

The  remaining  facts  are  sufficiently  stated  in  the  opinion  of  this 
court.' 

Mr.  Justice  Mercer  delivered  the  opinion  ^^'i  Die  court,  Janu- 
ary :,  1878. 

-Ml  the  a.ssignment-^  of  error  may  be  answered  in  the  consideration 
of  two  questions, — the  one  whetlier  the  corporation  had  the  ]>ower 
to  incur  the  alleged  liability;-  the  other  whether  there  was  sullicient 
evidence  to  submit  to  a  jury  that  the  liability  was  actually  incurred. 

1.  The  original  charter  declares  one  of  the  objects  of  the  a.ssocia- 
tion  to  be  '*the  building  of  a  mc^eting-house,  and  settlement  and 
.support  of  a  pastor  or  minister  of  the  gospel  for  ihc  worsliip  of 
Almighty    Cod,    and     the;    religious    instruction    of    the    congrega- 

'Thr  halanop  of  llio  Htntpniont  of  the  rnsp,  iticlmlin;,'  tlip  cli.nT.'c  of  tlic  court 
upponlfd   from,  oniittrd. — En. 

'Ah  to  thfi  linhility  of  a  corporntion  in  qiinsi-conlnut  fnr  liciiifll'^  received 
from  ultra  vires  tranHuctions,  sec  post. — Ki). 


CHAP.    II.]  FIRST   BAPTIST   CHURCH   V.    CAUGIIEY.  421 

tion,  .  .  .  together  with  that  of  the  purchase  and  tenure  of  such 
lands  or  lots  as  may  he  necessary  and  convenient  for  the  site  of  a 
meeting-house,  of  a  burial-ground,  and  of  a  parsonage  house  of  con- 
venient size  for  their  minister."  A  supplement  to  the  charter  gives 
the  corporation  power  to  assess  and  collect  a  tax  on  the  pews ;  but  not 
to  exceed  in  any  one  3^ear  twenty  per  centum  upon  a  fixed  valuation, 
for  the  purpose  of  defraying  the  expenses  of  repairs,  insurance  and 
minister's  salary,  together  with  incidental  expenses.  The  charter  is 
silent  on  the  subject  of  borrowing  money. 

Some  thirty  years  after  the  corporation  was  formed,  the  church 
edifice  became  unsuitable  and  inadequate  for  the  enlarged  congrega- 
tion. It  therefore  resolved  to  rebuild  and  enlarge  the  meeting-house. 
This  required  an  expenditure  beyond  the  sum  subscribed  by  voluntary 
contributions,  for  that  purpose.  The  meeting-house  was  rebuilt.  Had 
the  corporation  power  to  contract  a  debt  in  rebuilding  beyond  the 
amount  subscribed?  We  think  it  had.  The  object  of  its  incorpora- 
tion could  not  be  fulfilled  without  the  meeting-house.  No  clause  in 
its  charter  forbid  its  contracting  a  debt  in  the  erection  of  its  necessary 
buildings.  Whether  it  hired  laborers  and  bought  materials  on  a 
credit,  or  whether  it  borrowed  money  with  vs^hich  to  pay  for  the  labor 
and  materials  when  procured,  the  liability  incurred  was  for  the  same 
purpose.  As  it  could  not  have  successfully  defended  against  the  wages 
of  a  laborer  employed  in  the  erection  of  the  house  through  want  of 
power  to  employ  him,  so  it  cannot  defend  against  the  payment  of 
money  borrowed  and  actually  expended  in  the  erection  of  the  church. 
As  to  the  policy  of  a  church  erecting  a  house  of  worship  far  1)eyond 
its  available  means,  we  do  not  now  feel  it  necessary  to  indicate  an 
opinion.  Certain  it  is,  that  the  small  sum  here  in  controversy  is 
trifling  compared  with  the  large  debts  resting  upon  many  of  the 
churches  in  towois  and  in  cities. 

2.  The  charter  declared  the  business  and  affairs  of  the  association 
should  be  under  the  direction  and  management  of  five  trustees,  a 
majorit}^  of  whom  should  constitute  a  quorum.  It  further  declared 
the  trustees  should  "have  the  general  care,  superintendence,  and  man- 
agement of  the  concerns  of  the  same." 

During  the  progress  of  the  work,  Mr.  Liddell,  one  of  the  trustees, 
appears  to  have  been  the  financial  agent  and  manager,  in  behalf  of  the 
board  of  trustees.  In  raising  the  funds  necessary,  he  borrowed  $1,200 
from  Mrs.  Smith,  and  gave  his  individual  note  therefor.  Subsequently 
the  trustees  borrowed  $900  of  Josejih  Xeeley,  to  pay  so  much  of  the 
debt  due  to  Mrs.  Smith,  and  four  of  them  executed  and  delivered  the 
note  for  the  sum  thus  borrowed.  The  court  doubted  the  power  of 
the  plaintiff  in  error  to  give  the  note,  and  the  consequent  liability  of 
the  corporation  thereon  alone ;  but  substantially  charged  that  there 
were  certain  implied  powers  incident  to  every  corporation,  and  if  they 
were  satisfied,  from  the  evidence,  that  the  money  for  which  the  note 


422  FIRST   BAPTIST    CHURCH    V.   CAUGHEY.  [BOOK    II. 

was  given  was  actually  used  in  rebuiUling  tlie  cluirch,  ami  thus  went 
to  the  benefit  of  the  society,  the  law  raised  an  implied  obligation  on 
the  part  of  the  church  to  repay  it.  It  was  contended  on  tlie  argument 
tiiat  there  was  no  evidence  that  the  money  was  used  in  rehuilding  the 
church.  The  answer  to  this  objection  is  shown  in  several  parts  of 
the  record.  The  note  itself  contains  the  written  declaration  of  four 
of  the  trustees  jointly,  when  engaged  in  making  the  loan,  that  the 
$!K)0  were  "for  use  of  First  Baptist  Church."  The  .settlement  which 
Liddell  subsequently  made,  as  appears  by  the  receipt  signed  by  the 
])resident  of  the  board  of  trustees,  and  one  other  trustee,  declares, 
"We  hereby  assume  all  liabilities  of  said  church  for  which  said  W.  J.  F. 
Liddell  as  trustee  has  become  responsible,  including  note  given  to 
Mrs.  Catharine  Smith,  signed  by  himself  individually,  for  the  use 
of  said  church,  according  to  settlement  made  this  day."  On  the  trial 
of  the  cause,  James  Dunlap,  president  of  the  board  of  trustees,  was 
called,  by  defendants  in  error,  as  a  witness,  and  in  his  testimony  in 
chief  said,  "in  repairing  church  had  to  borrow  money;  were  advised 
by  counsel  that  church  could  not  borrow  it ;  must  be  individual ;  the 
money  borrowed  from  Xeeley  was  paid  to  Mrs.  Catharine  Smith,  to  dis- 
charge a  debt  to  her  for  money  borrowed  by  Mr.  Liddell  for  the 
church."  It  is  true,  on  cross-examination,  his  evidence  goes  to  impair 
the  validity  of  the  receipt  to  which  his  name  was  subscribed,  and  he 
further  said  "none  of  the  Neeley  money  was  received  by  the  church." 
I  think  the  fair  interpretation  of  his  testimony  is  that  the  money  was 
not  actually  paid  into  the  hands  of  the  trustees,  but  was  paid  directly 
by  Neeley  to  Mrs.  Smith.  It  was,  however,  a  question  for  the  jury 
to  determine.  It  is  further  shown  by  the  evidence  that  the  plaintiff 
in  error  made  a  payment  of  $.300  on  the  note  given  to  Xeeley;  the 
indorsement  thereof  being  in  llie  handwriting  of  the  treasurer,  now 
decea.sed,  of  the  corporation. 

This  chain  of  evidence,  both  written  and  v(^rbal,  ttmding  to  show 
how  the  business  was  conducted  and  settled,  ratified  by  a  partial  pay- 
ment, was  certainly  sudicicnt  to  submit  to  the  jury  to  find  that  the 
money  was  used  in  rebuilding  the  church. 

Jndgmonl  affirmed.^ 

'"One  who  tnkon  Midi  ii  liill  or  note  in  cxchnnji^  for  poods,  nionoy  or  other 
con>^i<l<riition,  may  n  [nidiatc  the  hill  or  note  and  cluirye  the  firm  upon  an 
equita))li*  lialiility,  or  (nia?^i(»mt ract  for  the  value  of  the  ronsidcralion  fur- 
niHhed.     Kirnt  C'huieh  r.  Cauphey.  M.')  I'a.  271. 

".^>,  alHf),  one  who  taken  Huch  a  hill  or  note  in  Hat  isfartimi  of  a  claim  atjainst 
a  partnership,  may  repudiate  the  hill  and  eharpe  the  partnership  upon  the 
old  elaim.  Turnhow  v.  HrocK-h,  12  Hush,  455  (approve<I  in  Williams  v.  RogerH, 
14  Hunh,  270);  Perrin  r.  Keene,  11)  .Me.  .155;  (Joodspeed  v.  South  Hend  Co. 
45  Mieh.  2.'J7  :  I'attersf.n  r.  ("amdcn.  25  Mo.  l.T;  fJardner  r.  Conn..  34  Oh.  St. 
187;  Seward  v.  I/K«tranfje,  .^0  Tex.  2(15;  Parker  v.  Cousins.  2  Crat.  372." 
Amen'  Cbhch  on  PartnorHhip,  408  (last  two  paragraphn).  Sec  note  to  previous 
eaB€. 


CHAP.   II.]         RAILROAD   NATIONAL  BANK  V.   CITY   OF   LOWELL.  423 

EAILROAD  NATIONAL  BANK  v.  CITY  OF  LOWELL. 

Supreme  Judicial  Court  of  Massachusetts,  1872. 

[109  Massachusetts,  214.] 

Contract  to  recover  $3397  as  money  had  and  received  to  the 
plaintiff's  use.  The  case  was  submitted  to  the  judgment  of  this 
court  on  the  following  statement  of  facts : 

In  1864  Thomas  G.  Gerrish  was  chosen  treasurer  of  the  defend- 
ants, held  the  office  by  successive  annual  elections,  and  discharged 
the  duties  thereof  until  after  March  10,  1869.  During  all  this  time 
he,  as  treasurer,  had  an  account  with  the  plaintiffs  and  with  no  other 
bank,  under  an  arrangement  between  the  parties  that  the  accounts 
of  the  defendants  should  be  kept  there.  In  each  of  the  years  1865, 
1866,  1867  and  1868.  the  city  council  authorized  him  to  borrow  money 
of  the  plaintiffs  in  anticipation  of  the  collection  of  taxes,  and  the 
sums  so  borrowed  were  always  repaid  with  interest.  In  March  1869, 
Gerrish  was  a  defaulter  to  the  defendants  as  treasurer,  to  the  amount 
of  $30,000,  but  the  fact  was  unknown  to  the  parties  to  this  action, 
and  on  the  evening  of  Marcli  9  a  resolution,  authorizing  him  to 
borrow  $130,000  from  the  plaintiffs,  in  anticipation  of  the  collection 
of  taxes  for  that  year,  was  introduced  into  the  common  council,  read 
once,  and  ordered  to  a  second  reading. 

On  the  morning  of  ]\Iarch  10,  1869,  at  which  time  the  amount 
standing  to  the  credit  of  Gerrish  as  treasurer,  in  the  plaintiff's  hands, 
was  $2674,  he  stated  to  the  plaintiff's  cashier  that  the  necessary 
authority  to  borrow  money  had  been  granted  the  evening  before, 
that  the  papers  were  not  executed,  and  that  he  wished  to  overdraw 
his  account.  He  therefore,  without  the  knowledge  of  the  defendants, 
or  any  special  authority  from  them,  presented  to  the  plaintiffs  a 
check  signed  by  himself  as  city  treasurer,  payable  to  his  owti  order, 
and  indorsed  by  him,  for  $5000,  received  the  money  therefor  from  the 
plaintiffs,  placed  the  same  in  the  cash-drawer  where  he  kept  the  de- 
fendants' money,  with  "a  small  sum,  exceeding  $100,"  remaining  there 
after  the  business  of  the  preceding  day;  and  from  the  money  there 
he  paid  during  the  same  day,  to  varous  creditors  of  the  defendants, 
upwards  of  $4900.  The  rest  of  it  was  left  there,  and  came  into  the 
possession  of  the  defendants.     He  afterwards  on  the  same  day  drew 

In  Grand  R.  B.  Co.  v.  Rollins  (1880)  a  de  facto  corporation  was  held  liable 
for  labor  and  services  of  which  it  had  the  benefit.  To  quote  the  court: 
"After  the  corporate  capacity  had  become  complete,  the  plaintiff  passed  upon 
and  allowed  the  defendants'  account  embracing  these  items,  and.  if  this  had 
not  been  done,  it  bavin;,'  accepted  and  appropriated  tlie  fruit  of  Rollins'  labor 
and  money,  the  law  would  imply  a  promise  to  pay  for  the  same." — Ed. 


4v'i:  U.MLHOAD    NATIONAL    HANK    I'.    CITY    OF    LOWELL.         [nOOK    II. 

another  clietk  upon  the  phiintilTs,  signed  by  himself  as  eity  treasurer, 
payable  to  bearer,  for  $107'-i,  to  pay  a  debt  due  from  the  defendants 
to  a  gaslight  eompany,  which  cheek  was  presented  to  the  plaintitrs 
by  the  company  and  paid  on  tiie  same  day. 

On  March  11,  18(!!>,  CJerrish  resigned  his  ollice.  He  never  kept  a 
private  account  with  the  plaintiils.  Demand  was  made  on  the  defend- 
ants on  March  Iv*.  ISGH. 

Wklls,  J.  That  the  city  is  not  liable  for  the  money  as  a  loan, 
because  it  was  advanced  to  its  treasurer  or  paid  upon  his  checks, 
is  fully  settled  by  the  decisions  in  Lowell  Five  Cents  Savings  Bank 
V.  Winchester,  8  Allen,  101);  Benoit  i".  Conway,  10  Allen,  528;  and 
Dickinson  r.  Conway,  12  Allen,  487. 

It  was  also  decided  in  Kelley  v.  Lindsey,  7  Gray,  287,  that  money 
advanced  on  account  of  the  defendant  to  one  in  his  employ,  but 
who  had  no  authority  to  borrow  money  for  him,  created  no  debt 
against  the  defendant,  although  advanced  for  the  purpose  of  being 
expended  in  his  business  and  to  pay  his  debts,  and  actually  so  applied. 
That  decision  appears  to  us  to  be  conclusive  against  the  jjlaintiir  in 
this  case. 

In  Dill  V.  Wareham,  7  Met.  438,  cited  by  the  plaintiff,  the  money 
was  j)aid  into  the  treasury  of  the  town  in  jjursuanee  of  a  contract 
made  by  authority  of  a  vote  of  the  town. 

In  Atlantic  Bank  v.  Merchants'  Bank,  10  (J ray,  532,  and  Skinner 
r.  Merchants'  Bank,  4  Allen,  2IH),  the  money  came  into  the  actual 
possession  and  control  of  the  defendant  bank.  The  k'gal  possession 
of  money  received  by  the  ofHccrs  of  a  bank,  in  the  usual  mode,  is  in  the 
corporation,  and  not  in  the  oHiccrs  in  whose  charge  and  manual  con- 
trol it  is  intrusted.    Commonwealth  v.  TuekiTuian,  10  (Jray,  173. 

The  treasurer  of  a  city  or  town  is  an  indejiendi'nt  accounting  olFicer, 
by  statute  made  the  depositary  of  the  moneys  of  the  city  or  town, 
cien.  Sts.  e.  18,  §g  54,  59;  c.'lO,  §  2.  The  legal  po.sscs.sion  of  the 
specific  moneys  in  his  hands,  ftom  whatever  source,  is  in  him.  Han- 
cock V.  Hazzard,  12  Cush.  112.  Cojeraine  r.  Bell,  !>  Met.  VMl  All 
moneys  of  the  city  or  town  he  holds  as  its  property,  and  e.xclusivi'ly 
for  its  use.  But  he  holds  them  by  virtue  of  his  public  official  author- 
ity and  duty,  and  not  merely  as  the  agent  or  servant  of  a  corporation. 

The  fact  that  the  money  in  this  case  went  into  the  hands  of  the 
treasurer,  and  wa.s  placed  in  the  drawer  provided  by  the  city  for  his  use 
in  keepmg  the  funds  of  the  city,  is  not  enough  to  charge  the  de- 
fendant  with  liability. 

The  result  in,  therefore,  that  the  defendant  is  entitled  to  judg- 
ment. 


CHAP.    II.]  BILLINGS    V.    INHABITANTS    OF    MONMOUTH.  425 

GEOEGE  II.  BILLINGS  v.  IXHABITAXTS  OF  MONMOUTH. 

Supreme  Judicial  Court  of  Maine,  1881. 

[73  Maine  Reports,  174.] 

On  exceptions  and  motion  for  a  new  trial. 

Assumpsit  on  three  promissory  notes  signed  "William  G.  Brown, 
Treasurer;"  also  for  money  had  and  received. 

Plea  was  general  issue,  and  statute  of  limitations  was  set  up  under 
a  brief  statement. 

The  verdict  was  for  $3,004.81. 

The  exceptions  relate  to  the  admission  in  evidence  of  the  notes 
declared  upon,  of  certain  other  notes,  and  of  the  records,  accounts, 
and  settlements  with  the  treasurer  of  the  defendant  town.  Exceptions 
were  also  taken  to  the  part  of  the  charge  to  the  jury  given  below : — 

"Now  a  question  is  raised  here  in  the  very  beginning  whether  these 
notes  are  the  notes  of  the  town,  or  the  notes  of  the  treasurer.  I  do  not 
deem  it  necessary  to  state  in  regard  to  that  now.  I  do  not  care  to 
state  it  for  the  reason  that  there  are  several  actions  pending,  in  which 
that  very  question  will  be  raised  and  will  be  finally  settled  by  the 
law  court.  And  it  is  sufficient  for  me  to  say  to  you,  that  those  notes 
were  not  authorized  by  any  vote  of  the  town.  .  .  .  That  lays  the 
notes  out  of  the  case;" — and  to  other  parts  of  the  charge  covering 
several  pages. 

Barrows,  J.  The  defendants'  objections  to  the  reception  in  evi- 
dence of  the  notes  sued,  and  certain  other  notes  and  renewals  thereof, 
which  were  claimed  by  plaintiff  in  one  phase  of  the  case  to  constitute 
the  consideration  of  the  notes  in  suit,  and  like  objections  to  the  records 
of  the  doings  of  the  town  at  various  town  meetings,  between  1862  and 
1872,  and  to  the  reports  of  the  town  treasurer  at  its  annual  meetings, 
from  1865  to  1877  inclusive,  all  accepted  by  the  town,  and  to  the 
settlements  of  the  treasurer  with  the  selectmen,  if  said  objections  could 
be  supposed  in  any  view  of  them  to  possess  merit,  became  altogether 
immaterial,  when  the  presiding  judge,  with  full  instructions  as  to  the 
effect  of  a  want  of  authority  upon  the  validity  of  the  notes,  peremp- 
torily instructed  the  jury  that  "these  notes  were  not  authorized  by  any 
vote  of  the  town,  that  they  were  not  ratified,  that  there  was  nothing  in 
the  case  which  would  authorize  any  such  inference,"  and  finally,  that 
"that  lays  the  notes  out  of  the  case,  and  brings  us  to  the  other  count, 
that  for  money  had  and  received."^ 

The  defendants'  counsel  insists  in  argument  upon  the  refusal  of 

'A  ])oiti«in  of  the  opinion  relating  to  the  admissibility  of  evidence  has  been 
cniittod. — Kd. 


42G  UILLlNliS    V.    I.VHAIJITANT.S    OK    MON.MOUTH.  [BOOK    TI. 

the  presiding  judge  to  rule  upon  the  question,  whether  the  notes  were 
in  form  notes  of  the  town,  or  notes  whicli  eouUl  hind  the  treasurer 
only.  If  the  instructions  to  the  jury  had  permitted  a  recovery  upon 
the  notes  in  any  contingency,  that  inquiry  would  seem  to  he  pertinent. 
But  tliey  did  not.  The  notes  were  "laid  out  of  the  case."  and  the 
plaintiff's  right  to  recover  was  made  to  depend  upon  his  establishing 
what  was  necessary  to  entitle  him  to  a  verdict  upon  the  count  for 
money  had  and  received.  The  testimony  tending  to  show  authority 
or  ratification  was  weighed  and  found  wanting.  After  this,  there  was 
no  occasion  to  pass  uj)on  the  construction  of  the  notes,  any  more  than 
there  was  in  Parsons  v.  Monmouth,  70  Me.  204. 

That  any  negotialjle  paper,  made  hy  the  officers  of  a  town  in  the 
transaction  of  its  ordinary  business,  not  proceeding  under  special 
authority  conferred  by  some  statute,  will  be  subject,  even  in  the  hands 
of  a  bona  fide  indorsee,  to  all  equitable  defences  that  might  be  made 
against  the  original  promisee,  is  well  settled  in  this  State,  as  appears 
in  the  case  last  named,  and  the  cases  there  cited. 

.\nd  the  plain  doctrine  of  Bep.sey  i'.  Unity,  Go  Me.  342,  and  Parsons 
V.  Mcjumouth,  is  tluit  the  holder  of  such  paper  who  has  lent  money 
upon  the  representation  of  town  officers  that  it  was  wanted  for  munici- 
pal u.se,  must  go  farther  and  show  the  appropriation  of  the  money 
lent  to  di.scharge  legitimate  expenses  of  the  town,  unless  he  can  show 
that  such  ollicers  were  specially  authorized,  hy  vote  of  the  town  at 
a  legal  meeting,  to  effect  the  loan.  The  case  at  bar  seems  to  have 
been  tried  in  careful  conformity  with  these  rules.  The  fallacy  of  the 
greater  part  of  the  d<'f<'nflants'  argument  upon  the  exceptions  consists 
in  ignoring  the  fact  that  "the  notes  were  laid  out  of  the  case." 

It  is  strongly  implied  in  the  two  cases  last  above  cited  that  money 
thus  advanced  and  shown  to  have  been  actually  appropriated  to  the 
di.scharge  of  legal  liabilities  of  the  town,  would  be  held  recoverable  in 
an  action  for  money  had  and  received  against  the  town.  We  .see  no 
good  reason  to  excuse  the  town  from  refunding  it  when  it  has  been 
actually  thus  appropriated.  The  plaintiff  by  such  proof  brings  his  case 
fully  within  the  princi[)les  that  govern  the  action  for  money  had  and 
receivcfd.  He  shows  his  money  received  and  appropriated  by  the  agents 
of  the  town  to  the  legitimate  use  of  the  town,  and  in  such  case  the 
want  of  an  express  promise  to  repay  it  will  not  defeat  the  action. 
The  law  will  imply  a  promise,  sometimes,  even  against  the  denial  and 
protestation  of  the  defendant.     Howe  v.  Clancey,  r)3  Me.  130. 

It  i.s  the  payment  of  the  lawfid  debts  of  the  town  by  its  own  agents 
with  the  plaintiff's  money  which  constitutes  the  cause  of  iictioii. 

To  jillow  a  recovery  by  the  phiintifT  of  whatever  sum  he  can  show 
has  thus  inured  to  the  benefit  of  the  town,  is  a  more  comjx'ndious  mode 
of  j«!ttling  the  controversy  than  the  English  method  of  siibrogating 
the  lender  of  the  mon<'y  to  the  rights  of  the  jx'rliaps  nuuierous  corjK)- 
ration  creditors,  who  have  been  paid  with  the  funds  procured  without 


CHAP.    II.]  BILLIXGS    V.    INHABITANTS   OF   MONMOUTH.  427 

authority, — a  mode  of  doing  justice  which  manifestly  tends  to  a  multi- 
plicity of  suits,  when,  for  aught  we  see,  the  proper  result  may  be 
reached,  at  all  events  with  the  assistance  of  an  auditor,  in  a  single 
action. 

Looking  at  the  issue  which  was  in  fact  presented  to  the  Jury,  it  will 
be  seen  that  defendants'  counsel  is  in  error  in  supposing  that  if  the 
presiding  judge  had  ruled  that  if  the  notes  were  in  form  the  individual 
notes  of  Brown,  "that  would  have  ended  the  conflict  and  the  plaintiff 
would  have  been  nonsuited." 

The  plaintifi'  ofl'ered  testimony  tending  to  put  his  case  upon  another 
footing  than  that  of  Parsons  v.  Monmouth,  and  hence  all  the  evidence 
which  had  a  tendency  to  show  that  plaintiff's  money  was  used  for  the 
payment  of  some  legitimate  indebtment  of  the  town  was  strictly 
relevant;  and  the  instructions  (of  some  of  which  the  defendants  com- 
plain) were  appropriate  to  direct  the  attention  of  the  jury  to  that 
which  was  the  chief  subject  of  inquiry.  Thus  it  is  obvious  that  the 
deficiency  in  the  town  treasurer's  accounts  was  of  importance  only 
upon  the  question,  what  was  done  with  the  plaintiff's  money,  and  as 
it  might  bear  upon  that  question,  the  presiding  judge  called  the 
attention  of  the  jury  to  it.  The  defendants  surely  have  no  cause  of 
complaint  that  he  did  so,  nor  that  he  required  the  jury  carefully  to 
ascertain  such  facts  as  were  necessary  to  determine  whether  the  old 
notes  which  (it  was  claimed)  were  paid  with  this  money  were  barred 
by  the  statute  of  limitations,  and  whether,  if  the  plaintiff's  money 
was  paid  to  discharge  them,  they  represented  not  only  just  but  legal 
claims  against  the  town. 

The  vital  question  of  fact,  whether  the  plaintiff's  money  had  actu- 
ally been  applied  by  the  town  officers  to  the  extinguishment  of  legal 
claims  against  the  town,  was  settled  by  the  jury  against  the  defend- 
ants. The  jury  found  that  it  was  so  applied.  The  testimony  pro- 
duced by  the  plaintiff,  if  believed,  justified  the  finding,  and  there  is 
nothing  in  its  character  or  in  that  of  the  accounts  produced  which 
decisively  stamps  it  as  untrue.  There  is  an  apparent  error  of  a  few 
dollars  in  the  reckoning  of  interest.  When  the  plaintiff  has  cured  this 
by  a  remittitur,  the  entry  will  be 

Motion  and  excepiiona  overruled. 

Appleton,  C.  J.,  Walton,  Virgin,  Libbey,  and  Symonds,  JJ., 
concurred.* 

"'In  recent  cases  in  this  State  it  has  been  held,  that  when  selectmen  have 
*cted  without  special  authority  in  procuring  loans  of  money  for  municipal 
purposes,  if  the  lender  would  recover  in  an  action  of  assumpsit  against  the 
town  the  amount  of  the  loans,  he  must  prove  not  only  that  the  money  was 
received  by  the  selectmen  in  thir  oiriiial  capacity  but  also  that  it  was  applied 
by  them  to  the  use  for  which  it  was  obtained,  to  meet  and  discharge  existing 
municipal  liabilities,  Billings  r.  Monmouth,  72  Maine.  174;  that  towns  them- 
selves by  the  statutes  organizing  them  are  strictly  limited  in  the  exercise  of 


428  TAYLOR    V.    HAKE.  [BOOK    II. 

TAYLOR  r.  HAKE. 

Common  Pleas,  1805. 

[Bosanquet  &  Puller,  New  Reports,  260.] 

Tins  was  an  action  for  money  had  and  received,  which  came  on  to 
be  tried  before  the  Lord  Chief  Justice  at  the  sittings  after  last  llihiry 
term,  when  a  verdict  was  found  for  the  phiintiff  for  £125,  subject  to 
the  opinion  of  the  court  upon  the  following  case: 

On  the  12th  of  September.  17!)1,  the  defendant  took  out  a  patent 
for  the  invention  of  an  apparatus  for  preserving  the  essential  oil  of 
hops  in  brewing.  By  articles  of  agreement,  dated  5th  of  November, 
1792  (whicii  were  set  out  at  lengtii  at  the  end  of  the  case),  and  made 
between  the  defendant  of  the  one  part,  and  the  plaintilF  and  his  said 
late  partner  of  the  other  part,  reciting  the  defendant's  patent,  and  that 
it  gave  him  the  sole  power,  privilege,  and  authority  of  using,  exer- 
cising, and  vending  his  said  invention  for  the  term  of  fourteen  years, 
the  defendant  granted  lO  the  plaintiff  and  his  said  late  partner  the 
privilege  of  making,  using,  and  exercising  the  said  invention  for  the 
residue  of  the  said  term  of  fourteen  years,  and  in  consideration 
thereof  tlie  plantifF  and  his  [)artner  covenanted  tiiat  they  would 
secure  to  be  paid  to  the  defendant  during  the  said  term  an  annuity 
of  £100,  and  would  give  their  bond  for  that  purpose,  and  a  bond  was 
accordingly  given,  conditioned  for  the  payment  of  the  said  annuity. 
The  plaintilT  and  his  said  partner  used  the  apparatus  (for  making 
and  pre})aring  of  which  tliey  paid  a  distinct  price)  from  the  date  of 
the  said  agreement  until  the  25th  day  of  March,  1797,  and  during 
all  that  time  regularly  paid  the  said  annuity  to  the  said  defendant.  The 
defendant  was  not  the  inventor  of  the  invention  for  which  he  ol)tained 
his  patent.   The  invention  was  not  new  as  to  the  ])ul>lic  use  and  service 

the  powers  of  Itorrow  in;j  iiiul  nppioiirialinf;  money.  Hooper  r.  Kmerv,  11  Maine, 
.'J75;  PiirMonH  v.  Monnioutti,  70  Main*',  'J(i4 ;  Minol  r.  West  Roxhury,  112  -Mass. 
I  ;  that  Holoetnion  <lo  not  possesn  by  virtue  of  their  ollleo  n  general  authority 
to  liire  money  upon  the  eredit  of  the  town,  RoKHey  r.  I'nity,  0.')  Maine,  347; 
that  Honie  aetion  of  the  town,  the  luxly  corporate,  witliin  the  seopo  of  its 
corporate  [lowers,  is  rcfpiired  to  confer  j)rior  authority  to  borrow  money  in 
itj4  name;  ami  if  a  lialiility  ]>*  allefred  im  the  j^'round  tliat  the  plaintiff's  loan 
wan  one  the  municipality  had  a  leyal  riyht  to  procure  and  that.  thou>.'h  its 
ofTi'-erH  did  not  act  with  authority  at  the  time,  it  has  sulisetpiently  avai1e<I 
itwlf  of  the  money  loaned  l>y  ae«'eptiny  its  ajiplication  to  the  payment  of 
nuinicipal  rlehtH,  it  in  for  the  plaintiff  to  prove  the  faetn  which  support  the 
allepition."     Lincoln  r.  Sf^K'kton   (ISS.'n   75  Me.  141.  144,  14.'). 

For  a  diMiission  of  the  princi|>le  underlying;  recovery  in  rpiasi contract 
apiinst  munici|)al  corfuirnt i<in.  see  a  careful,  aicin.'itc  and  dinc>t  not<'  on  tlic 
hul»je<l  in  4  Columhia  L.  lU'V.  fi7-G8. — Kd. 


CHAP.    II.]  T.WLOR   V.    HARE.  429 

thereof  in  England,  Init  it  was  the  invention  of  one  Thomas  Sutton 
Wood,  and  had  been  publicly  used  in  England  by  said  Wood  and  others 
before  the  defendant  obtained  his  patent.  But  the  patent  had  never 
been  repealed.  The  amount  of  the  annuity  which  they  had  paid  was 
£425.  If  the  court  should  be  of  opinion  that  the  plaintiff  was  en- 
titled to  recover  back  the  money  which  was  paid  on  the  bond,  the 
verdict  was  to  stand.  If  the  court  should  be  of  a  contrary  opinion,  a 
nonsuit  was  to  be  entered. 

Bayley,  Serjt.,  for  the  plaintiff.  To  support  the  present  action  it  is 
not  necessary  to  prove  that  any  imposition  has  been  practised.  If 
it  appear  that  the  plaintiff  has  received  nothing  in  return  for  the 
money  which  he  has  paid,  he  is  entitled  to  recover  back  his  money 
in  this  form  of  action.  He  was  induced  to  pay  his  money  upon  the 
supposition  that  the  defendant  had  the  power  of  communicating 
some  privilege.  But  it  now  appears  that  the  defendant's  invention 
was  not  new,  and  that  the  patent  was  therefore  void,  the  consideration 
upon  which  the  plaintiff  paid  his  money  has  wholly  failed,  and  the 
plaintiff  has  derived  no  benefit  whatever.  Where  an  estate  is  con- 
veyed, the  vendor  professes  to  convey  nothing  but  his  title  to  that 
estate.  But  here  the  thing  itself  which  was  the  subject  of  the  agree- 
ment had  no  existence.  It  was  the  understanding  of  all  parties  that 
the  defendant  was  entitled  to  a  patent-right ;  but  it  now  turns  out 
that  they  were  mistaken;  the  plaintiff  therefore  is  entitled  to  recover 
the  money  which  he  has  paid  under  a  mistake.  He  had  a  right  to 
make  use  of  the  invention  without  paying  anything  for  it.  The  de- 
fendant has  no  right  to  the  annuity,  and  indeed  he  has  already 
failed  in  an  action  on  the  bond  in  which  the  validity  of  the  patent 
was  put  in  issue. 

Sir  James  ]\Iaxsfield,  C.  J.  (stopping  CocTcell,  Serjt.,  for  the  de- 
fendant). It  is  not  pretended  that  any  action  like  the  present  has 
ever  been  known.  In  this  case  two  persons  equally  innocent  make  a 
bargain  about  the  use  of  a  patent,  the  defendant  supposing  himself 
to  be  in  possession  of  a  valuable  patent-right,  and  the  plaintiff  sup- 
posing the  same  thing.  Under  these  circumstances  the  latter  agrees 
to  pay  the  former  for  the  use  of  the  invention,  and  he  has  the  use 
of  it ;  non  constat  what  advantage  he  made  of  it ;  for  anything  that 
appears  he  may  have  made  considerable  profit.  These  persons  may 
be  considered  in  some  measure  as  partners  in  the  benefit  of  this 
invention.  In  consideration  of  a  certain  sum  of  money  the  defendant 
permits  the  plaintiff  to  make  use  of  this  invention,  which  he  would 
never  have  thought  of  using  had  not  the  privilege  been  transferred 
to  him.  How  then  can  we  say  that  the  plaintiff  ought  to  recover  back 
all  that  he  has  paid?  I  think  that  there  must  be  judgment  for  the 
defendant. 

Heath,  J.  There  never  has  been  a  case  and  there  never  will  be, 
in  which  a  plaintiff,  having  received  benefit  from  a  thing  which  has 


430  MARSTON    r.    SWETT.  [BOOK    II. 

afterwards  boen  recovered  from  liini,  has  been  allowed  to  maintain 
an  action  for  the  consideration  originally  paid.  We  cannot  take  an 
account  here  of  the  prolits.  It  might  as  well  be  said,  that  if  a  man 
lease  land,  and  the  lessee  pay  rent,  and  afterwards  be  evicted,  that  he 
shall  recover  back  the  rent,  though  he  has  taken  the  fruits  of  the 
land. 

HooKK,  .T.     I  am  of  the  same  opinion. 

(.'n.vMBRE,  J.  The  plaintiff  has  had  the  enjoyment  of  what  he 
stipulated  for,  and  in  this  action  the  court  ought  not  to  interfere, 
unless  there  be  something  ex  crquo  ct  bono  which  shows  that  the 
defendant  ought  to  refund.  Here  both  parties  have  been  ntistaken; 
the  defendant  has  thrown  away  his  money  in  obtaining  a  patent  for 
his  own  invention;  not  so  the  plaintiff,  for  he  has  had  the  use  of 
another  person's  invention  for  his  money.  In  the  case  of  Arkwright's 
patent,  which  was  not  overturned  till  very  near  the  period  at  which 
it  would  have  expired,  very  large  sums  of  money  had  been  paid ; 
and  though  something  certainly  was  paid  for  the  use  of  the  machines, 
yet  the  main  part  was  paid  for  the  privilege  of  using  the  patent-right, 
hut  no  money  ever  was  recovered  back  which  had  been  paid  for  the  use 
of  that  patent.  1  am  therefore  of  opinion  that  judgment  of  nonsuit 
should  be  entered. 

Judgment  of  nonsuit. 


Ix  Marsfnn  v.  Swrif  (1870)  GG  X.  Y.  20n,  210,  Eakl.  J.,  delivering 
the  opinion  of  the  court,  said: 

It  is  claimed  by  the  defendants  that  the  agreement  is  void  for  want 
of  a  consideration,  in  that  the  patent  was  invalid.  This  defence 
is  very  imperfectly  set  up  in  the  answer,  but  the  pleadcT  evidently 
intended  to  set  it  up,  and,  therefore,  we  will  assiiine  that  it  is 
sufliciently  pleaded.  It  is  sulliciently  established  by  the  judgment  in 
the  United  States  Circuit  Court,  in  an  action  in  which  these  defend- 
ants were  plaintiffs,  and  this  f)lainti(T  and  others  defendants.  That 
judgment  e.stabli.shed  the  faet  that  this  patent  was  wholly  void, 
invalid  and  of  no  effect,  for  the  reason  that  Hlizabeth  Hawks,  the 
patentee,  was  not  the  original  and  first  inventor  of  the  imj)rovement 
[Kiterited.  That  judgment  was  not  set  up  in  the  answer,  but  the 
invalidity  of  the  patent  was  alleged,  and  the  judLfiiient  was,  therefore, 
pioprrly  received  in  evidence  to  prove  the  allegation,  assuming  that 
the  allegation  itself  was  material.  n<)ii<l)iiii(l  r.  Dias,  M  Den.  238; 
Castle  r.  X..yes.  11  N.  Y.  320;  Hinchey  r.  Stryker,  2H  id.  Art.  The 
judgment  in  such  a  case  is  received  in  evidence*,  not  as  a  bar  of  itself 
to  a  recovery,  but  as  proof  tn  <'stahlish  a  material  fact  in  controversy. 
Tlie  invalidity  of  the  patent  being  thus  established,  the  further 
material  point  to  Ik;  considered  is,  whether  that  furnished  a  defence  to 


CJIAP.    II.]  MARSTON    V.    SWETT.  431 

this  action.     I  am  of  opinion  that,  upon  the  facts  of  this  case,  it 
did  not. 

The  plaintiff  and  defendants  were  tenants  in  common  of  the 
patent,  all  believing  it  to  be  valid.  Each  had  the  right  to  manu- 
facture and  to  license  others  to  manufacture  under  it.  Clum  v. 
Brewer,  2  Curtis,  506.  The  defendants  desired  the  exclusive  right 
to  use  the  invention,  and  hence  made  this  agreement  with  the  plaintiff. 
Under  it,  they  actually  enjoyed  the  exclusive  right  which  tlicy  sought, 
and  the  plaintiff  gave  up  all  right  to  manufacture  or  to  license  others 
to  manufacture.  There  was  no  fraud,  and  the  defendants  got  all  they 
bargained  for.  During  the  time  mentioned  in  the  complaint,  they 
enjoyed  all  thoy  could  have  had  if  the  patent  had  been  valid.  Under 
such  circumstances,  there  was  abundant  consideration  to  uphold  the 
agreement,  whether  the  patent  was  valid  or  invalid. 

The  parties  held  a  patent,  which  was  respected  as  valid  by  every- 
body. They  enjoyed  a  monopoly  of  the  invention.  They  could  manu- 
facture the  patented  article  without  competition ;  and  the  possession 
of  the  patent,  apparently  valid,  enabled  them  to  license  others,  for  a 
consideration,  to  use  it.  In  consideration  of  defendants'  promise, 
the  plaintiff  gave  up  all  the  advantage  he  thus  had,  and  the  defend- 
ants, by  virtue  of  the  agreement,  enjoyed  the  exclusive  monopoly. 
Here  there  was  injury  to  one  party,  and  benefit  to  the  other,  either 
of  which  is  sufficient  to  furnish  a  consideration  for  a  promise.  Miller 
V.  Drake,  1  Cai.  45;  Converse  v.  Kellogg,  7  Barb.  590;  Freeman  v. 
Freeman,  43  N.  Y.  34.  Suppose  there  had  been  no  patent  whatever, 
and  the  defendants  had  promised  the  plaintiff  to  pay  him  fifty  cents 
upon  every  stove  which  they  manufactured,  in  consideration  that  he 
would  not,  during  a  given  period,  manufacture  any.  The  plaintiff 
having  the  right  to  manufacture,  and  having  abstained  from  its  exer- 
cise, would  any  one  question  that  there  would  be  a  sufficient  con- 
sideration to  uphold  this  promise  of  the  defendants? 

There  are  several  English  cases  holding  that  the  invalidity  of  the 
patent  is  no  defence  to  such  an  action  as  this  to  recover  license  fees 
for  the  term  the  patent  was  actually  used  under  tlie  license.  Taylor  v. 
Hare,  1  N.  Rep.  260 ;  Lawes  v.  Purser,  88  Eng.  C.  L.  R.  929 ;  Noton  v. 
Brooks,  7  Hurlst.  &  N.  499;  Baird  v.  Neilson,  8  CI.  &  Fin.  726; 
Crosley  v.  Dixon.  10  H.  Lords  Cases,  293;  Chanter  v.  Dewhurst, 
12  M.  &  W.  823;  Lawes  v.  Purser,  38  Law  &  Eq.  P.  48;  see  also 
Hindmarch  on  Patents,  245.  To  the  same  effect  is  Bartlett  r.  Hol- 
brook,  1  Gray,  114,  and  also  Marsh  v.  Dodge,  4  Kern.  279.  The  case 
of  Saxton  v.  Dodge,  57  Barb.  84.  has  some  features  like  this  case, 
but  many  more  unlike  it.  There  the  licensees  of  the  patent  did  not 
get  all  they  bargained  for,  and  they  were  induci'd  to  enter  into  the 
contract  by  fraud. 

It  is  the  settled  law  of  tliis  and  several  other  States  that  the 
invalidity  of  the  patent  is  a  defence  to  an  action  for  the  purchase- 


432  MARSTOX    V.    SWETT.  [BOOK    II. 

price  of  thj  same,  on  the  ground  of  a  failure  of  the  consideration. 
Cross  r.  Huntly,  13  Wend.  385;  Head  v.  Stevens,  ID  id.  -ill; 
McDougall  V.  Fogg,  2  Bosw.  387;  Dunbar  v.  Mardeu,  13  N.  H.  317; 
Geiger  v.  Cook,  3  Watts  &  Serg.  270;  Darst  v.  Brockway,  11  Ohio, 
471;  McCIure  v.  Jeffrey,  8  Ind.  82;  Mullikin  v.  Latchem,  7  Blaekf. 
130.  It  is  therefore  argued  on  behalf  of  the  defendants  that  such 
an  agreement  as  this,  for  tlie  exclusive  use  of  a  void  ])atent,  which 
is  a  less  interest  than  an  assignment  of  the  entire  patent,  is  without 
consideration.  This  conclusion  is  not  altogether  legitimate.  Where 
one  bargains  for  a  patent  right  lie  e\j)ects  a  monopoly,  and  something 
which  he  can  use,  sell  and  deal  in  during  the  entire  term  of  the  patent, 
to  the  exclusion  of  every  one  else.  He  bargains  for  something  which 
he  docs  not  get,  and  cannot  enjoy,  if  the  patent  is  invalid.  He  gets 
nothing,  the  vendee  parts  with  nothing,  and  there  is  an  entire  failure 
of  consideration.  But  whore  one  has  a  void  patent  which  he  can  use, 
and  give  others  the  right  to  use,  and  thus  has  an  advantage  which  is 
valuable  to  liim.  and  another  bargains  for  that  advantage  which  he 
surrenders  and  the  other  enjoys,  the  latter,  during  the  time  he  is 
permitted  to  use  the  patent  unmolested,  gets  just  what  he  bargained 
for,  and  cannot  complain.  When  a  case  shall  be  presented  where,  in 
good  faith,  a  void  patent  has  been  sold,  and  the  vendee  has  enjoyed 
the  monopoly  for  the  whole  term  of  the  patent,  without  molestation 
or  liability  to  account  to  any  one  claiming  a  superior  right,  it  will  be 
proper  to  consider  whether,  upon  principle,  there  has  been  a  failure 
of  consideration,  and  whether  such  a  case  should  be  controlled  by  tlie 
authorities  above  cited.  There  is  no  doubt  as  to  what  would  be 
decided  by  the  English  courts  in  such  a  case.  Hall  v.  Condor,  8!)  Eng. 
C.  L.  II.  22.  In  this  case  the  defendants  had  enjoyed  the  monopoly 
which  they  bargained  for,  without  liability  to  account  to  any  one 
except  the  plaintilf.  1'hey  are  not  liable  to  account  to  the  owners 
of  th(!  LordfoUow  patent  for  Ihe  term  prior  to  its  issui'.  (Javier  r. 
Wil.ler,  10  How.  (IT.  S.)   177. 

The  plaintiff's  claim  was  therefore  undefended,  and  the  court 
erred  in  ordering  judgment  for  defendants  upon  their  oountor-i'laim. 
It  is  true  that  tlu;  connt(>r-claim  was  not  sulliciently  (b'niod  by  the 
reply,  and  judgment  might  have  boon  ordered  for  the  jilaintiir  for  the 
balance  of  his  claim,  afti'r  deducting  the  amount  of  the  counter- 
claim ;  but  a  new  trial  should  be  granto(l,  and  it  is  hoped  that  the  very 
iinporfect  pleadings  will  be  so  reformed  l)efore  another  trial  as  to 
present  truly  tlie  precise  i.^suos  wbicb  the  parties  desire  to  try. 

.Judgment  should  be  reversed  ami  m-w  trial  giantcd,  costs  (o  nbidc 
event.' 

All  concur.     J-'oLOKU,  J.,  absr'nt. 

'.And  •*«•<•  tin-  hhiiic  cimo  at  a  later  ntaffe.     Marston  r.  Swell  (  l.SSO)   S2  N.  Y. 
520.    Src  a\M)  for  New  York  Inw,  Hyutt  v.  InRnllH  (IfiOl )   124  N.  Y.  O.J ;  Denisi' 


CHAP,   II.  J  SHEARER  V.   FOWLER.  433 


SHEARER  V.  FOWLER. 

Supreme  Judicial  Court  of  Massachusetts,  1810. 

[7  Massachusetts,  31.] 

The  declaration,  whicli  was  in  case,  contained  four  counts.  The 
last  count,  upon  which  alone  any  question  came  before  the  court,  was 
for  money  iuul  and  received  by  the  defendant  for  the  plaintiff's  use. 

At  the  trial  of  the  action  before  Sedgwick,  J.,  at  the  last  April 
term  in  this  county,  the  plaintiff  offered  to  prove,  in  support  of  his 
said  count,  that  in  consideration  of  the  deed  made  by  Abigail  Fowler, 
the  defendant's  wife,  as  the  aitorney  of  her  husband  and  in  her  own 
right  (which  deed  is  described  in  the  case  of  Fowler  v.  Shearer,  ante 
page  14),  of  certain  premises  which  the  husband  and  wife  held  in  her 
right,  he,  the  plaintiff,  paid  to  the  defendant  one  hundred  and  sixty 
dollars,  and  gave  his  promissory  note  for  two  hundred  dollars,  to  re- 
cover back  which  money  so  paid  was  the  purpose  of  this  count.  The 
evidence  was  rejected  by  the  judge,  and  for  that  cause  the  plaintiff 
moved  for  a  new  trial,  and  the  action  stood  continued  upon  that 
motion  to  the  present  term. 

Ashmun.  of  counsel  for  the  plaintiff,  considered  this  point  as 
settled  by  tlie  decision  in  the  action  before  referred  to.  wherein  the 
present  defendant  was  plaintiff,  and  the  now  plaintiff  was  defendant. 

V.  Swett  (1893)  22  N.  Y.  Supp.  950;  and  an  excellent  digest  article  on  licenses 
under  an  invalid  patent,  i;{  Albany  L.  J.  410. 

For  the  law  in  general,  compare  the  following  cases:  Lawes  v.  Purser  ( 18.5G) 
8  E.  &  B.  930;  Clark  v.  Adie  (1887)  L.  R.  2  App.  Cas.  423:  Jones  r.  Burnliam 
(1877)  67  Me.  93;  Standard  Button  Fastening  Co.  v.  Ellis  (1893)  159  Mass. 
448;  Schwartzenbach  v.  Odorless  Co.  (1885)  05  Md.  34;  Day  v.  Kellogg  (1870) 
1  Mich.  (N.  P.)  173;  Darst  v.  Brockway  (1842)  11  Oh.  402.  And  see  an  article 
on  this  subject  in  56  Albany  L.  J.  259;  Walker  on  Patents  (4th  ed.)  200. 

In  Standard  Button  Fastening  Co.  r.  Ellis,  ,'iupra,  the  court  said:  "A 
license  imparts  no  warranty  that  the  patent  is  valid,  and  no  case  has  been 
found  which  holds  that  a  covenant  for  quiet  enjoyment  of  the  right  to  use 
the  invention  is  implied.  The  analogy-  to  a  lease  of  land  is  not  very  close.  A 
license  to  use  a  patented  invention  gives  permission  to  make  such  use  as  far 
as  that  can  be  done  without  infringing  other  patents.  Where  a  grant  of  an 
exclusive  right  is  made,  if  the  exclusive  right  fails,  the  consideration  of  the 
grant  fails.  Harlow  v.  Putnam,  124  Mass.  553.  But  where  a  more  licen.se 
is  given,  it  is  hold  that  there  is  no  failure  of  consideration  till  the  licensee 
is  actually  prevented  from  using  the  invention.  Marston  v.  Swett,  82  X.  Y. 
520;  Angier  v.  Eaton,  98  Penn.  St.  594;  .lones  r.  Burnham,  07  Maine.  93; 
Pacific  Iron  Works  v.  Newhall,  34  Conn.  07;  White  r.  Lee,  14  Fed.  Rep.  789; 
Corell  V.  Bostwick,  39  Fed.  Rep.  421;   Robinson  on  Patents,  §   1251. "' — Ed. 


434  SMOL'T    V.    MAKY    ANN    ILBEUY.  [bOOK    II. 

Blisn,  for  the  defendant,  thought  this  a  different  question,  and  so,  he 
said,  did  the  court :  for,  in  delivering  the  opinion  of  the  court,  in  that 
action,  tlie  chief  justice,  putting  the  supposition  that  "the  defendant 
there  had  paid  the  consideration  money,  and  brought  his  action  to 
recover  it  back  as  paid  by  mistake,"  observes  that  "a  different  question 
would  have  arisen,  involving  different  considerations." 

Here  the  plaintiff  voluntarily  paid  the  money,  and  although  he 
was  mistaken  as  to  the  legal  effect  of  the  deed  for  which  he  paid  it,  he 
has  no  right  to  reclaim  it.  It  was  a  mere  mistake  of  the  law :  all  the 
facts  of  the  case  were  as  well  known  to  him  at  the  time  the  trans- 
action took  place,  as  they  have  been  since. 

CuuiA.  The  principles  of  law  applicable  to  this  case,  seem  to  be 
well  settled.  Whenever  money  is  paid  in  consideration  of  a  contract, 
which  contract  is  void  for  want  of  power  in  one  of  the  parties,  or  for 
any  cause,  other  than  fraud  or  illegality  in  the  contract,  natural  justice 
dictates  that  the  money  so  paid  shall  be  refunded ;  and  there  is  no 
principle  of  law  to  prevent  the  operation  of  so  equitable  a  rule.  Here 
the  deed,  for  which  the  money  demanded  in  this  action  was  part  of 
the  consideration,  has  been  adjudged  void ;  and  in  that  action  a  promis- 
sory note,  which  was  another  part  of  the  consideration  of  the  same 
deed,  has  been  avoided  as  nudum  pactum,  because  the  deed  failed.  No 
cause  can  be  assigned  why  the  money,  which  was  actually  paid, 
should  remain  in  the  hands  of  the  party  who  still  holds  the  property 
for  which  this  money  was  paid.  The  evidence  ought  therefore  to 
have  been  admitted.  The  verdict  must  be  set  aside,  and  a  new  trial 
granted. 


SMOUT  r.  :\I.\RV  AW  TT.BKRY. 

EXCHEQUEU.    IHlv*. 

[10  Meeson  and  Welsby,  1.] 

DiiHT  for  good-:  sold  and  delivered,  and  on  an  account  stated. 

At  the  trial  In-fore  (JruNKY.  H.,  at  the  Middlesex  sittings  in  Michael- 
mas term,  IHIl,  it  appeared  that  the  plaintiff  was  a  butcher,  and  the 
defendant  the  widow  of  James  Ilbery.  who  h^ft  Kngland  for  China 
in  May,  IS.'J!),  and  was  lost  in  the  outward  voyage,  on  the  1  Hh  October, 
IH.'JI).  Tho  news  of  his  death  arrived  in  iOngland  on  the  13tli  of 
March,  IKlo.  'I'he  plaintiff  had  supplied  meat  to  the  family  l)eforo 
Mr.  Ilberv  sailed,  and  during  his  voyage,  and  the  supply  continued 
down  to  the  time  of  the  news  of  his  death,  and  even  afterwards.  Tpon 
the  1  Ith  October,  1839,  the  day  of  Mr.  Ilbery's  death,  the  amount 
of  the  debt  was  U)2  13s.  lid.    Between  that  dav  and  the  arrival  of  the 


CHAP.    II.]  SMOUT    V.    MARY    ANN    ILBERY.  435 

news  of  the  death,  meat  had  been  supplied  to  the  amount  of  £19  9s. ; 
and  after  that,  the  supply  amounted  to  £6  7s. 

The  judgment  of  the  Court  was  now  delivered  by 
Alderson^  B.  This  ease  was  argued  at  the  sittings  after  last  Hilary 
term,  before  my  Brothers  Gurney,  Kolfe,  and  myself.  The  facts 
were  shortly  these.  The  defendant  was  the  widow  of  a  Mr.  Ilbery, 
who  died  abroad ;  and  the  plaintiff,  during  the  husband's  lifetime,  had 
supplied,  and  after  his  death  had  continued  to  supply,  goods  for  the 
use  of  the  family  in  England.  The  husband  left  England  for  China 
in  March,  1839,  and  died  on  the  14th  day  of  October,  in  that  year. 
The  news  of  his  death  first  arrived  in  England  on  the  13th  day  of 
March,  1840;  and  the  only  question  now  remaining  for  the  decision 
of  the  court  is,  whether  the  defendant  was  liable  for  the  goods  supplied 
after  her  husband's  death,  and  before  it  was  possible  that  the  knowledge 
of  that  fact  could  be  communicated  to  her.  There  was  no  doubt  that 
such  knowledge  was  communicated  to  her  as  soon  as  it  was  possible; 
and  that  the  defendant  had  paid  into  court  sufficient  to  cover  all  the 
goods  supplied  to  the  family  by  the  plaintiff  subsequently  to  the  13th 
March,  1840. 

We  took  time  to  consider  this  question,  and  to  examine  the  author- 
ities on  this  subject,  which  is  one  of  some  difficulty.  The  point,  how 
far  an  agent  is  personally  liable,  who,  having  in  fact  no  authority, 
professes  to  bind  his  principal,  has  on  various  occasions  been  dis- 
cussed. There  is  no  doubt  that  in  the  case  of  a  fraudulent  misrepre- 
sentation of  his  authority,  with  an  intention  to  deceive,  the  agent 
would  be  personally  responsible.  But  independently  of  this,  which 
is  perfectly  free  from  doubt,  there  seems  to  be  still  two  other  classes 
of  cases,  in  which  an  agent  who  without  actual  authority  makes  a 
contract  in  the  name  of  his  principal,  is  personally  liable,  even  where 
no  proof  of  such  fraudulent  intention  can  be  given.  First,  where  he 
has  no  authority,  and  knows  it,  but  nevertheless  makes  the  contract 
as  having  such  authority.  In  that  case,  on  the  plainest  principles  of 
justice,  he  is  liable.  For  he  induces  the  other  party  to  enter  into  the 
contract  on  what  amounts  to  a  misrepresentation  of  a  fact  peculiarly 
within  his  own  knowledge ;  and  it  is  but  just,  that  he  who  does  so 
should  be  considered  as  holding  himself  out  as  one  having  competent 
authority  to  contract,  and  as  guaranteeing  the  consequences  arising 
from  any  want  of  such  authority.  But  there  is  a  third  class,  in  which 
the  courts  have  held,  that  where  a  party  making  the  contract  as  agent 
bona  fide  believes  that  such  authority  is  vested  in  him,  but  has  in  fact 
no  such  authority,  he  is  still  personally  liable.  In  these  cases  it  is 
true,  the  agent  is  not  actuated  by  any  fraudulent  motives ;  nor  has  he 
made  any  statement  which  he  knows  to  be  untrue.     But  still  his  lia- 

'Tho  baliinoc  of  the  statement  of  facts,  not  material  to  the  immediate  ques- 
tion, is  omitted. — Ed. 


43lJ  8M0DT    V.    MAKY    ANN    ILBERY.  [BOOK    II. 

bility  depends  on  tho  same  principles  as  before.  It  is  a  wr()n>i,  dif- 
fering only  in  degree,  but  not  in  its  essence,  from  the  former  case,  to 
state  as  true  what  the  individual  making  such  statement  does  not 
know  to  be  true,  even  thougii  he  does  not  know  it  to  be  false,  but 
believes,  without  sutlicient  grounds,  that  tlie  statement  will  ultimately 
turn  out  to  be  correct.  And  if  that  wrong  produces  injury  to  a  third 
person,  who  is  wholly  ignorant  of  the  grounds  on  which  such  belief 
of  the  supposed  agent  is  founded,  and  who  has  relied  on  the  correct- 
ness of  his  assertion,  it  is  equally  just  that  he  who  makes  such  assertion 
.-liould  be  personally  liable  for  its  consequences. 

On  examination  of  the  authorities,  we  are  satisfied  that  all  the  cases 
in  which  the  agent  has  been  held  personally  responsible,  will  be  found 
to  arrange  themselves  under  one  or  other  of  these  three  classes.  In 
all  of  them  it  will  be  found,  that  he  has  either  been  guilty  of  some 
fraud,  has  made  some  statement  which  he  knew  to  be  false,  or  has 
stated  as  true  what  he  did  not  know  to  be  true,  omitting  at  the  same 
time  to  give  such  information  to  the  other  contracting  jtarty.  as  would 
enable  him  equally  with  himself  to  judge  as  to  tiie  authority  under 
which  he  proposed  to  act. 

Of  the  first,  it  is  not  necessary  to  cite  any  instance.  Polhill  r. 
Walter,  3  B.  &  Ad.  114,  is  an  instance  of  the  second;  and  the  cases 
where  the  agent  never  iuid  any  authority  to  contract  at  all,  but  be- 
lieved that  he  had,  as  when  he  acted  on  a  forged  warrant  of  attorney, 
which  he  thought  to  be  genuine,  and  the  like,  are  instances  of  the 
third  class.  To  these  may  Im'  added  those  cited  by  Mr.  Justice  Story, 
in  his  book  on  Agency,  p.  2*^^(J,  note  3.  The  present  case  seems  to  us 
to  be  distinguishable  from  all  these  authorities.  Here  the  agent  had 
in  fact  full  authority  originally  to  contract,  and  did  contract  in  the 
name  of  the  jjrincipal.  There  is  no  ground  for  saying,  that  in  repre- 
senting her  authority  as  continuing,  she  did  any  wrong  whatever. 
There  was  no  mala  fides  on  her  part,  no  want  of  due  diligence  in  ac- 
quiring knowledge  of  the  revocation,  no  omission  to  state  any  fact 
within  her  knowledge  relating  to  it;  and  the  revocation  itself  was 
l)y  the  act  of  (Jod.  The  continuing  of  the  life  of  the  principal  was, 
under  the.sc  circumstances,  a  fact  equally  within  the  knowledge  of 
both  contracting  parties.  If,  then,  the  true  principle  derivable  from 
th(!  cases  is,  that  there  must  be  some  wrong  or  omission  of  right  on 
the  part  of  the  agent,  in  order  to  make  him  |)ersonally  liable  on  a 
contract  made  in  the  name  of  his  priiuiple.  it  will  fullDw  that  the 
a;.'eiit  is  not  responsible  in  such  a  case  as  the  |)resenl.  And  to  this 
conclusion  we  have  come.  We  were,  in  the  course  of  the  argunuMit, 
pressed  with  the  dillicidty,  that  if  the  defendant  be  not  personally 
liable,  there  is  no  one  liable  on  this  contract  at  all ;  for  lilades  r.  Free. 
9  H.  &  C.  lf.7  ;  I  Man.  &  R.  28'^.  has  decided,  that  in  such  a  ease  the 
executors  (»f  the  Inisband  are  not  liable.  This  may  be  so:  but  we  do 
not  Lhink  that  if  it  be  .so,  it  affords  to  us  a  suflicienl  ground  for  hold- 


CHAP.    11. J  VALENTINI    V.    CANALI.  437 

ing  the  defendant  liable.  In  the  ordinary  case  of  a  wife  who  makes 
a  contract  in  her  husband's  lifetime,  for  which  the  husband  is  not 
liable,  the  same  consequence  follows.  In  that  case,  as  here,  no  one 
is  liable  upon  the  contract  so  made. 

Our  judgment,  on  the  present  occasion,  is  founded  on  general  prin- 
ciples applicable  to  all  agents;  but  we  think  it  right  also  to  advert  to 
the  circumstance,  that  this  is  the  case  of  a  married  woman,  whose 
situation  as  a  contracting  party  is  of  a  peculiar  nature.  A  person 
who  contracts  with  an  ordinary  agent  contracts  with  one  capable 
of  contracting  in  his  own  name;  but  he  who  contracts  with  a  married 
woman  knows  that  she  is  in  general  incapable  of  making  any  contract 
by  which  she  is  personally  bound.  The  contract,  therefore,  made 
with  the  husl)and  by  her  instrumentality,  may  be  considered  as  equiva- 
lent to  one  made  by  the  husband  exclusively  of  the  agent.  Now,  if 
a  contract  were  made  on  the  terms,  that  the  agent,  having  a  determin- 
able authority,  bound  his  principal,  but  expressly  stipulated  that  he 
should  not  be  personally  liable  himself,  it  seems  quite  reasonable  that, 
in  the  absence  of  all  mala  fides  on  the  part  of  the  agent,  no  responsi- 
bility should  rest  upon  him ;  and,  as  it  appears  to  us,  a  married  woman, 
situated  as  the  defendant  was  in  this  case,  may  fairly  be  considered  as 
an  agent  so  stipulating  for  herself;  and  on  this  limited  ground,  there- 
fore, we  think  she  would  not  be  liable  under  such  circumstances  as 
these. 

For  these  reasons,  we  are  of  opinion  that  the  rule  for  a  new  trial 
must  be  absolute;  but  as  the  point  was  not  taken  at  Nisi  Prius,  we 
think  the  costs  should  abide  the  event  of  the  new  trial. 

Rule  absolute  accordingly. 


VALENTINI  V.  CANALI. 

Queen's  Bench  Division,  1889. 

[Law  Reports,  24  Queen's  Bench  Division,  167.] 

Appeal  from  the  Woolwich  County  Court  in  an  action  remitted 
for  trial  from  the  Chancery  Division  in  which  the  plaintiff  claimed 
a  declaration  that  a  contract  by  which  he  agreed  with  the  defendant  to 
become  tenant  of  a  house,  and  to  pay  £102  for  the  furniture  therein, 
was  void,  and  the  return  of  £(58  paid  by  him  on  account,  on  the  ground 
that  he  was  an  infant  at  the  time  when  he  entered  into  the  contract. 
It  appeared  that  the  plaintiff  had  occupied  the  premises  and  used  the 
furniture  for  some  months.  The  judge  found  in  the  plaintiff's  favour 
on  the  issue  of  infancy,  declared  the  contract  to  be  void,  and  ordered 
a  promissory  note  given  by  the  plaintiff  for  the  balance  due  for  the 


438  VALEXTIXI    V.    CAXALI.  [BOOK  II. 

furniture  to  be  cancelled,  but  refused  to  order  tbo  return  of  tbe  sum 
paid.    Tbe  plaintiff  appealed. 

Lord  CoLEUiixiE,  C.  J.  I  am  of  opinion  that  tbis  appeal  sbould 
be  dismissed.  Under  tbe  contract  in  (juestion,  wbicb  was  one  for  bis 
advantage,  tbe  plaintiff,  an  infant,  undertook  to  pay  tbe  defendant 
a  sum  of  money.  lie  paid  tbe  defendant  part  of  tbis  sum,  and  gave 
him  a  promissory  note  for  the  balance.  Tbe  judge  satisfied  himself 
that  tbe  plaintiff  was  an  infant  at  the  time  when  be  entered  into  the 
contract,  and,  liaving  .satisfied  bim.self  of  this,  did,  in  my  opinion, 
justice  according  to  law.  He  set  aside  the  contract,  and  be  ordered 
tbe  promi-ssory  note  to  be  cancelled. 

It  is  now  contended  that,  in  addition  to  this  relief,  the  plaintiff 
was  entitled  to  an  order  for  the  re-payment  of  tlie  sum  paid  by  him 
to  the  defendant  as  money  paid  under  a  contract  declared  to  bo  void. 
No  doubt  tbe  words  of  s.  1  of  the  Infants'  Relief  Act,  1874,  are 
j-trong  and  general,  but  a  reasonable  construction  ought  to  be  put 
upon  them.  The  construction  which  has  been  contended  for  on 
behalf  of  tbe  plaintiff  would  involve  a  violation  of  natural  justice. 
When  an  infant  has  paid  for  something  and  has  consumed  or  used  it, 
it  is  contrary  to  natural  justice  that  he  sbould  recover  back  tbe 
money  wbieb  he  has  paid.  Here  the  infant  plaintiff  who  claimed  to 
recover  back  tbe  money  which  be  had  paid  to  the  defendant  bad  bad 
the  use  of  a  quantity  of  furniture  for  some  months.  He  could  not 
give  back  tbis  benefit  or  replace  the  defendant  in  the  position  in 
which  be  was  before  tbe  contract.  Tbe  object  of  the  statute  would 
Beem  to  have  been  to  restore  tbe  law  for  tbe  protection  of  infants 
upon  which  judicial  decisions  were  considered  to  have  imposed  qualifi- 
cations. The  legislature  never  intended  in  making  provisions  for  this 
purjjo.se  to  .sanction  a  cruel  injustice.  The  defen<lant  tlierefore  could 
not  be  called  upon  to  repay  tbe  money  paid  to  him  by  the  plaintiff, 
and  the  decision  appealed  against  is  right. 

BowEN,  L.  J.,  concurred. 

.4  ppea  1  disw  issed} 

'WhiTc  the  infant,  avoidin;;  the  fontract,  ha.s  acquirod  and  onjoyod  an 
intcrent  in  property  of  a  pormnni-nt  nature  with  obli^ition^  attached  to  it, 
the  infant  in  liahli>  on  a  (Hiasi-contract  for  the  I)enefits  received.  RIake  v. 
Conciinnon  MH7(M  4  Irisli  Hi-p.  Coniinon  Law,  '.\'2'];  Northwestern  Railway  Co. 
r.  McMichael  (iH.'iO)  r»  Kx.  114  (per  I'aukk.  R.);  Hamilton  v.  VaiiKlnm-Sher- 
rin,  etc.  (  lH!t4)  L.  R.  |lH!t4)  :<  Cli.  .''.K't ;  Holmes  r.  Rloj;;;  (  IHIH)  H  Taunt.  TjOS 
(oh  explained  in  Corpe  c.  Overton  (  IHIJ.S)  10  IMu^.  2.">2)  ;  .loliiisnii  i.  N.  \V.  Ins. 
Co.  (1H94)  r.fi  Minn.  .Jfi.''.. 

Thew  euMen  are  to  he  found  in  Smith's  Casca  on  tlic  Laws  of  I'erson.s,  to 
which  reference  iH  made. — Ed. 


CHAP.    II. J  BREE   V.    IIOLBECII.  439 

(h)  Mistake  as  to  the  Subject  Matter  of  a  Contract. 
(1)   Mistake  as  to  its  Existence  or  Identity. 


BREE  V.  HOLBECH. 

In  the  King's  Bench,  May  18,  1781. 

[2  Douglas,  654.] 

In  an  action  of  assumpsit  for  £2000  had  and  received  to  the  plain- 
tiff's use, — The  defendant  having  pk\aded  the  general  issue,  and  the 
statute  of  limitations, — the  plaintiff  replied :  That  the  writ  was  sued 
out  on  the  22d  of  August,  1780;  that,  on  the  18th  of  February,  1773, 
the  defendant  asserted  and  affirmed  that  there  was  an  indenture  of 
mortgage,  dated  the  24th  of  June,  1768,  made  or  mentioned  to  be 
made,  between  F.  and  S.  of  the  one  part,  and  W.  H.  (the  defendant's 
uncle)  on  the  other,  for  a  term  of  years,  granted  to  the  said  W.  H. 
as  a  security  for  the  payment  of  £1200  with  interest;  that  the  defend- 
ant then  further  asserted  and  affirmed,  that,  after  making  the  said 
indenture,  W.  H.  died;  that  the  defendant  was  his  administrator  with 
the  will  annexed,  and  there  was  due  to  him,  as  administrator,  the 
said  principal  sum  on  the  said  security,  that  the  plaintiff,  relying  on 
these  assertions  and  affirmations,  advanced  £1200  to  the  defendant, 
on  his  executing  an  indenture  of  assignment  on  the  said  18th  of 
February,  1773,  which  recited  the  mortgage,  and  purported,  for  the 
consideration  of  the  £1200  so  advanced,  to  assign  all  the  premises  by 
the  said  recited  indenture  of  mortgage  granted,  for  the  remainder  of 
the  term,  subject  to  the  original  power  of  redem})tion ;  that,  in  this 
indenture  of  assignment  the  defendant  agreed  with  the  plaintiff,  that 
neither  the  said  W.  H.  nor  the  defendant  had  done  any  act  to  in- 
cumber the  mortgaged  estate;  that  the  said  several  assertions  and 
affirmations  of  tlie  defendant,  and  also  the  recitals  in  the  said  in- 
denture of  assignment,  were  false,  inasmuch  as  there  never  was  any 
such  indenture  of  mortgage,  nor  the  sum  of  £1200  nor  any  other  sum, 
due  to  the  defendant,  as  administrator  of  W.  H.  on  such  security, 
in  the  manner  the  defendant  had  asserted  and  affirmed,  and  as  in  the 
indenture  of  assignment  was  recited,  or  in  any  other  manner;  and  that 
neither  the  premises  nor  any  part  thereof  passed  by  the  assignment  to 
the  plaintiff,  nor  did  any  estate,  right,  or  title  therein,  or  to  the  said 
sum  of  £1200  vest  in  him;  that,  by  fraud  and  imposition,  and  by 


440  BREE    r.    IIOLBECH.  [bOOK    II. 

means  of  the  said  false  assertions  and  alVirniations.  and  false  recitals, 
the  plaintiff  was  induced  to  pay  the  said  sum  of  £1*^00  on  the  execu- 
tion of  the  said  indenture  of  assignment ;  that,  at  the  time  of  the 
execution  thereof  and  of  paying  the  money,  the  jilaintiff  was  ignorant 
of  the  falsehood  of  the  said  assertions,  allirnuitions,  and  recitals,  and 
of  the  fraud  so  practised  upon  him,  and  did  not  discover  them  till 
within  the  space  of  six  years  next  hefore  suing  out  the  writ.  To  this 
replication,  the  defendant  demurred  generally.  The  case  was,  this 
day,  argued  hy  Hill,  Serjeant,  for  the  plaintiff;  and  Chambre,  for  the 
deft-ndant. 

Chambre,  in  support  of  the  demurrer,  contended,  that  there  was 
nothing  alleged  in  the  rej)lieation  which  could  take  the  case  out  of  the 
statute.  There  was  no  fraud  stated  to  have  been  practised  by  the 
defendant ;  for  it  was  not  averred  that  he  knew  of  the  falsehood  of  the 
dilferent  assertions  and  recitals.  But,  if  there  had  been  fraud,  that 
would  not  have  been  suthcient;  it  was  the  plaintiff's  business  to  look  to 
the  validity  of  his  security;  and  there  is  nothing  relative  to  fraud 
among  the  different  exceptions  and  savings  in  the  statute. 

Hill.  Serjeant,  insisted:  1.  That,  in  point  of  law,  this  was  fraud  on 
the  part  of  the  defendant,  although  he  himsi'lf  might  not  know  of  the 
falsehood;  2.  That,  wlu-re  a  j>arty  has  been  induced,  i)y  fraud,  to  pay 
money,  the  statute  of  limitations  does  not  run.  or  al  least  only  runs 
from  the  time  when  the  fraud  is  discovered. —  1.  The  assertions  of  the 
defendant,  he  observed,  were  positive,  without  qualification,  and  there- 
fore he  nuide  himself  answeral)le  for  the  truth  of  them;  and,  if  any 
loss  had  been  incurred  by  his  mistake,  it  ought  to  fall  upon  him,  not 
upon  an  innocent  third  person.  On  this  first  head,  he  cited,  1  Show. 
68;  3  Mod.  261;  Comb.  163;  IIearne*s  Pleader,  10\?,  224;  Cro.  Car. 
141 ;  Sir  W.  Jones.  196 ;  2  Burr.  112;  12  Mod.  V.)\ ;  2  Ves.  198—2.  On 
the  second  point,  he  relied  on  Booth  v.  I^ord  Warrington,  in  Dnin. 
Proc.  1714  (which  he  cited  from  the  printed  cases),  and  Tlir  South 
Sea  Comj>any  v.  Wymondsell,  3  P.  Wms.  1  l.'Ja. 

Lord  Mansfield.  The  basis  of  the  whole  argument  is  fraud;  and 
the  (juestion  is,  whether  fraud  is  anywhere  asserted  in  this  rej)lication. 
There  may  be  many  cases  where  the  assertion  of  a  false  fact,  though 
unknown  to  be  false  to  the  party  making  the  assertion,  will  be  fraudu- 
lent;  as  in  the  case  of  Sir  Crisp  (Jascoyne,  who  insured  a  life,  and 
aflirmed  it  was  as  good  a  life  as  any  in  Miigbmd,  not  knowing  whether 
it  was  or  was  not.  There  may  be  cases,  too,  which  fraud  will  not  take 
out  of  the  statute  of  limitations.  Hut.  here,  everything  alleged  in  the 
replication  may  be  tru«',  without  any  fraud  on  the  part  of  the  defend- 
ant.  He  is  an  administrator  with  the  will  annexed,  who  finds  a 
mortgage-deed  among  the  papers  of  his  testator,  without  any  arrears 
of  interest,  and  parts  with  it,  bona  fulr,  as  a  marketable  commodity. 
If  he  had  <Iiscovere(l  the  forgery,  and  had  then  got  rid  of  the  deed 
a.s  a  true  security,  the  ease  would  have  been  very  dilTerent.     He  did 


CHAP.    II.]  d'UTRICHT    V.    MFLCIIOR.  441 

not  covenant  for  the  goodness  of  the  title,  but  only  that  neither  he 
nor  the  testator  had  incumbered  the  estate.  It  was  incumbent  on  the 
plaintifT  to  look  to  the  goodness  of  it. 

Hill  had  leave  to  amend,  in  case,  upon  inquiry,  the  facts  would 
support  a  charge  of  fraud. 


D'UTEICHT  V.  MELCHOR. 

Supreme  Court  of  Pennsylvania,  1789. 

[1  Dallas,  428.] 

This  cause  was  tried  at  bar,  in  September  term  1788,  and,  a  verdict 
being  found  for  the  Plaintiff,  the  Defendant  obtained  a  rule  to  shew 
cause  why  a  new  trial  should  not  be  granted ;  which  was  argued  at  the 
present  term  by  Coxe  and  Sergeant,  in  support  of  the  rule,  and  by 
Lewis  and  Heath/  against  it. 

It  appeared,  that  the  Plaintiff  had  bought  a  tract  of  land  from 
the  Defendant,  who  had  previously  purchased  it  of  one  Simpson; 
but,  as,  upon  enquiry,  no  land  of  the  description  contained  in  the 
Defendant's  deed  to  the  Plaintiff  could  be  found,  this  action,  which 
was  an  action  of  Indebitatus  Assumjmt  for  money  had  and  received 
to  the  Plaintiff's  use,  was  brought,  in  order  to  recover  back  the 
consideration  money  that  had  been  paid ;  and,  on  the  trial,  the 
Defendant's  deed  was  given  in  evidence  to  prove  the  amount  and 
acknowledgment  of  such  payment.  The  declaration  also  contained 
a  count  in  the  nature  of  deceit;  but,  by  agreement  of  the  Council,  it 
made  no  part  of  the  argument,  whether  this  could  properly  be  coupled 
with  the  Assumpsit;  so  that  the  motion  for  a  new  trial  was  supported 
only  upon  those  grounds: — 1st,  That  the  action  of  Assumpsit  would 
not  lie ;  and  2dly,  That  the  deed  ought  to  have  been  given  in  evidence 
upon  the  trial. 

For  the  Defendant,  it  was  contended,  that,  as  there  was  no  sug- 
gestion of  fraud  to  vitiate  and  annul  the  original  contract  of  the 
parties,  the  proper  action  was  covenant  on  the  words  grant,  bargain, 
&c.  that  if  there  was  fraud,  the  remedy  was  an  action  of  deceit;  that 
Assumpsit  would  not  lie;  that  if  there  was  any  deceit  in  the  words 
of  the  deed,  still  the  action  might  have  been  brought  upon  the  deed 
itself;  that  a  deed  cannot  ])e  given  in  evidence  to  support  an  action 
of  Indebitatus  Assumpsit ;  that  there  was  no  proof  of  a  parol  Assump- 
sit; and  that  the  Defendant  could  not  plead  a  verdict  in  the  present 
suit,  in  bar  to  another  action  of  covenant  upon  the  deed.  See  Com. 
Dig.  145.  letter  F.  1.  Cowp.  414,  418,  SIS,  SIP:  Doug.  132;  1  State 


442  d'utriciit  r.  melciior.  [book  ii. 

Laws,  79;  1  Salk.  210;  Cro.  J.  500;  1  Roll.  Al)r.  278;  1  Yin.  Abr. 
277;  2  Black.  Hep.  1249;  (Jill).  L.  E.  183;  12  Yin.  11»0. 

For  the  Plaintiff,  it  was  answered,  that  whenever  natural  justice 
implies  that  the  party  ought  to  refund,  this  action,  which  is  like  a  bill 
in  equity,  will  lie  to  compel  him;  that  the  deed  was  not  the  founda- 
tion of  the  action,  but  given  in  evidence  merely  to  shew  the  amount 
of  the  consideration  money,  and  the  Defendant's  acknowledgment 
of  its  being  paid ;  and  that  the  declaration  was  supported  by  the 
precedent  in  Doug.  18.  See  Salk.  22,  1  Lev.  102;  Bull.  N.  P.  31; 
2  Stra.  915;  1  Lord  Rayin.  742;  2  Burr.  1088;  Salk.  284. 

The  case  being  held  for  some  days  under  advisement,  the  Chief 
Justice  now  delivered  the  opinion  of  the  Court  to  the  following 
effect : 

M'Kean,  Chief  Justice.  Tt  is  unnecessary  at  tliis  time  to  deter- 
mine, whether  the  Plaintiff  might  have  instituted  an  action  of 
covenant,  or  deceit,  in  order  to  obtain  a  redress  of  the  wrong 
which  he  has  sustained ;  for,  we  think  it  is  sullicient  for  his  pur- 
po.se,  that  an  action  of  Assumpsit  for  money  had  and  received  to 
his  use,  has  been  brought ;  and  that,  to  maintain  this  action,  he 
may  give  in  evidence,  that  the  Defendant  got  his  money  by  mis- 
take, imposition,  or  deceit.  To  prove  the  alleged  mistake,  imposition, 
or  deceit,  deeds  or  other  writings,  which  are  not  the  immediate  founda- 
tion of  the  suit,  but  only  U-ading  to  it,  may  be  read. 

We  are  all,  therefore,  of  opinion,  that  a  new  trial  ought  not  to  be 
granted. 

Judgment  for  the  Plaintiff.* 

'LiviNCSTON.  J.,  in  Wciivpr  r.  J^entloy  (180.3)  1  Ciiines,  40,  49,  said:  "Tlie 
ease  of  U'L'triclit  v.  .Mflcliur,  1  Dull.  428.  cannot  be  law." 

"So,  where  the  plaintitT  paid  money  to  the  defendant,  on  the  defendant's 
promise  to  make  him  a  lease  of  land,  and  before  the  lease  was  made  tlie  de- 
ft'tidant  was  evicted,  the  plaintitT  recovered  his  money  by  this  action  [as- 
^•iim[)Hit]  the  consideration  not  liavinp  Iteen  j)erformed.  Ui  i>;;:s'  case.  Palm. 
a.  .'{r»4." — 1   Kspinasso  N.  P.  2;  but  see  Hrifjff's  case  as  reported. 

Wherever  money  is  paid  on  a  consideration  which  fails,  it  may  be  recov- 
ered. French  r.  Millard  (18.''.:{)  2  Ohio  St.  44;  Honsteel  r.  Vanderbilt  (18r)r)) 
21  Marb.  2<J ;  Smith  v.  MeCluHkey  (1800)  45  Harb.  010;  2  C.reenleaf,  Ev.  Iflth 
ed.  S  124;  and  siicli  failure  is  a  pood  defence  to  a  suit  on  the  contract.  Gibson 
V.  Pelkie  (1H77)  .'{7  .Mich.  :{80;  Cockran  v.  Willis  (  mo.'i)  L.  H.  1  Vh.  .\p.  58;  and 
Hco  as  to  equity  cancelling'  sjich  a  contract,  .\llen  v.  llainniond  (18.37)  11 
Pet.  03. 

If  plaintitr  pays  nif)ncy  tinder  a  contract  jirTtiiittiii^'  him  to  refuse  to  com- 
plete the  coritraet,  and  he  ho  refuses,  he  nuiy  recover  the  money  advanced. 
.lohiiHon  V.  Kvans  (184»)  8  CJill,  l.-)."),  S.  C.  50  .Am.  Dec.  «505).  with  extensive 
note.  .And  if  payment  in  made  to  induce  one  to  do  somethinjj  one  is  already 
lej^nlly  bound  to  <lo,  a  recovery  is  allowed.  Parker  r.  Railroad  Co.  (1844)  7 
M    Si  G.  25.3.— Kii. 


CHAP.    II.]  HILL   V.    KEWEE.  443 

In  Hill  V.  Rewee  (184G)  11  Met.  2G8,  271,  Shaw,  C.  J.,  said: 
"The  view  which  we  took  of  the  case  was  tliis:  That  the  receipt  of 
April  2(1  was  manifestly  an  acknowledgment  of  a  receipt  of  so  much 
of  the  plaintiff's  money,  upon  an  executory  contract  to  deliver  a  given 
quantity  of  hay  at  a  fixed  price.  Then  the  rule  is  very  well  fixed 
that  where  money  is  paid  on  an  executory  contract  to  deliver  goods, 
or  transfer  stock,  or  the  like,  in  future,  and  the  contracting  party 
fails  to  perform,  it  is  in  the  election  of  the  other  party  to  treat  the 
contract  as  rescinded,  to  disaffirm  it,  and  recover  back  his  money,  as 
money  paid  uj)on  a  consideration  which  has  failed;  or  to  affirm  the 
contract,  and  recover  damages  for  the  non-performance.  Dutch  v. 
Warren,  1  Stra.  40G,  and  more  accurately  stated  by  Lord  Mansfield 
in  2  Burr.  1010  [Moses  v.  Macferlan].  If,  therefore,  the  defendant 
had  failed  wholly  in  the  performance  of  his  contract  to  deliver  the 
hay,  the  plaintiff  might  disaffirm  the  contract,  and  recover  back  the 
money  advanced,  as  money  paid  on  a  consideration  which  had  failed, 
and  held  by  the  plaintiff  to  the  defendant's  use.  And  in  modern  times, 
it  has  been  lield,  that  where  the  contract  fails  in  part,  if  it  be  a  precise 
and  definite  part,  capable  of  being  ascertained  by  computation,  a 
corresponding  part  of  the  consideration  may  be  recovered  back, 
although  the  bargain  or  contract  is  in  form  entire.  Johnson  v.  John- 
son, 3  Bos.  &  Pul.  162;  Parish  v.  Stare,  14  Pick.  198;  Miner  v. 
Bradley,  22  Pick.  457. 

"The  contract  being  for  the  delivery  of  a  quantity  of  hay  at  a  fixed 
price,  and  all  of  one  quality,  the  price  per  ton  fixed  the  price  per 
pound.  If  then  a  part  of  the  hay  was  delivered,  according  to  the 
contract,  but  a  precise  and  definite  part  remained  undelivered,  and 
the  defendant,  without  justification  or  excuse,  refused  to  deliver  the 
other  part  on  demand,  the  court  were  of  opinion,  that  a  corresponding 
portion  of  the  money  advanced,  capable  of  being  ascertained  by  com- 
putation, might  be  recovered  back."^ 

'"So,  this  action  [money  had  and  received]  will  lie  when  there  has  been  a 
partial  failure  of  consideration — or  rather  where  some  part  of  the  considera- 
tion has  ivhoUtj  failed."    Chitty,  Contracts,  10th  ed.  690. 

See  also  Iluggins  v.  Coates  (1843)  5  Q.  B.  432;  Devaux  r.  Conolly  (1849) 
8  C.  B.  640;  Scurfield  v.  Gowland  (1805)  6  East.  241;  Chawner  v.  Whaley 
(1803)  3  East,  500.— Ed. 


441  JONES    AND    OTHEKS    I'.    KYDE    AND    ANOTHER.        [bOOK    II. 

JOXES  AXD  OTIIKKS  r.  KYDE  AXD  AXOTTIKR. 

Common  Pleas,  1814. 

[5  Taunton,  488. J 

This  was  an  action  of  assumpsit  for  monov  had  and  received  which 
was  tried  at  the  sittings,  in  London,  after  Michaehnas  term,  1813, 
before  ^Iansfield,  C.  J.,  when  a  verdict  was  found  for  the  plaintiffs, 
damages,  £1000.  subject  to  a  case,  which  in  substance  was,  that  the 
defendants,  who  were  bill  brokers,  were  possessed  of  a  navy-bill  which 
purported  to  have  been  issued  by  the  transport  board,  and  to  bear 
date  and  have  been  registered  on  the  17th  of  July,  181:?,  and  to  be 
payable  on  the  15th  of  October,  1813,  and  to  be  drawn  on  the  treasurer 
of  the  navy  in  pursuance  of  a  charter-party  of  25th  June,  1808,  made 
with  Messrs.  Bell  &  Ilobbs  on  behalf  of  the  owners  of  the  Wolga,  Ward, 
master,  hired  to  serve  his  majesty  as  a  transport,  for  ]iayment.  ninety 
days  after  date,  to  Bell  &  Hobbs  or  their  order,  of  £1875,  and  more 
to  them,  for  interest  thereon,  from  7th  July  to  5th  October  following, 
when  that  bill  would  become  due,  l)eing  90  days,  at  3d.  per  cent  per 
(lirm.  £1!)  Ife.  lOd.,  together  £1884  Kis.  lOd.' .    .    . 

On  the  23d  of  August,  the  defendants  discounted  this  bill  with 
the  plaintiffs,  who  were  stock  and  l)ill  brokers;  they,  calculating 
the  interest  upon  £1883  Kis.  3(1.,  tlie  apparent  amount  of  the 
l)ill,  for  53  days,  from  23d  August  to  15th  October  inclusive, 
to  be  £13  13.s!  Gd.,  then  paid  the  defendants  £1870  2s.  f)d. 
as  the  difference,  and  received  from  them  the  bill.  On  the  27t]i 
August  the  plaintiffs  discounted  the  same  bill  with  Williams,  who 
calculated  the  interest  ujton  the  same  apparent  amount,  for  -10  days, 
from  that  day  to  the  15th  of  October,  to  be  £12  12s.  lOd.  ])aid  them 
£1871  3s.  5d.  as  the  difference,  and  received  from  them  the  bill.  The 
bill  i.ssued  from  the  transport-office  for  £884  IGs.  lOd.  only,  but  before 
the  23d  of  August  some  per.-^on  had  altered  it  by  prefixing  the  figure 
1  to  the  figures  £881  Kis.  lOd.,  and  £883  Kis.  3d.  in  the  several  places 
where  tho.se  sum.s  Ofciirred,  and  l)y  })refixing  tlie  same  figure  1  to  each 
of  the  dates  7th  July  and  5th  October,  .«o  that  before  and  when  it 
was  discounted  by  th(>  several  above-mentioned  parties,  wlio  were  all 
unconscious  of  the  alteration,  it  had  thereby  acquired,  in  the  particu- 
lars altered,  the  appearance  of  a  bill  fur  the  net  sum  of  £1883  Ids.  3d. 
dated  17th  July  and  payable  15th  October.  On  5th  October,  Williams 
presented  it  at  the  Xavy  Pay  Olliee  for  j)aynu'nt,  which  was  refused 
on  accf)unt  of  the  alterations;  upon  tlie  retpiisition  of  the  commission- 
ers, Williams  deposited   with    them,   without   the   knowledge  of  the 


CHAP.    II.]       JOXES    AND   OTHERS    V.    UYDE    AXD   ANOTHER.  445 

defendants,  the  altered  bill;  and  in  lieu  of  it  accepted  from  them  a 
new  bill  for  the  original  amount,  and  received  in  discharge  thereof 
£883  IGs.  3d.  after  allowing  £1  Us.  7d.  for  the  property-tax  charged 
on  the  interest.  Williams  thereupon  demanded  of  the  plaintiffs  re- 
payment of  £1000,  the  difference  between  the  sum  he  had  received 
from  the  Navy  Pay  Ollice  and  the  sum  he  had  j)aid  for  the  bill  to  the 
plaintiffs,  which  they  repaid  him,  and  brought  the  present  action  to 
recover  from  the  defendants  the  like  difference  of  £1000. 

GiBBs,  C.  J.  This  is  very  distinguishable  from  the  case  of  Price  v. 
Xeal,  because  there  the  bill  was  paid  by  the  person  who  of  all  others 
was  the  best  judge  whether  the  acceptance  was  his  handwriting  or 
not,  and  he  says,  on  looking  at  it,  this  is  my  handwriting  and  I  pay  it. 
The  case  of  Barber  v.  Gingell,  3  Esp.  GO,  is  a  much  stronger  case  even 
than  that.  It  was  an  action  on  an  acceptance  \vritten  in  the  name  of 
Gingell ;  the  defendant  had  not  accepted,  nor  ever  acknowledged  that 
he  had  accepted  that  bill;  but  it  was  proved  that  he  had  paid  bills 
with  similar  acceptances,  which  in  fact  were  forgeries  of  his  son; 
and  Lord  Kenyon,  C.  J.,  held  that  the  defendant,  having  given  credit 
to  similar  acceptances  in  the  like  course  of  dealing,  was  bound  to  pay 
the  bill  in  question.  The  court  are  of  opinion,  that  the  plaintiff  is 
entitled  to  recover  the  sum  he  seeks  to  recover  by  this  action ;  and  we 
think  so  on  the  ground  on  w^hich  it  is  put  by  my  Brother  Lens  that 
this  transaction  is  in  the  nature  of  an  exchange  between  the  two 
parties,  made  by  the  defendant  upon  the  one  hand,  of  a  navy  bill,  pro- 
fessing to  be  a  navy  bill  for  £1884  16s.  lOd.,  and  the  defendant  repre- 
senting it  to  be  a  genuine  navy  bill  of  that  amount,  and  by  the  plain- 
tiff on  the  other  hand,  of  a  sum  of  money  equivalent  to  the  sum 
which  would  be  paid  upon  that  bill  when  it  should  become  due,  sup- 
posing that  it  were  a  genuine  navy  bill,  minus  the  interest  for  the 
time  which  it  yet  had  to  run.  Both  parties  were  mistaken  in  the  view 
they  had  of  this  navy  bill;  the  one  in  representing  it  be  a  navy  bill 
of  this  description,  the  other  in  taking  it  to  be  such.  Upon  it  after- 
wards turning  out  that  this  bill  was  to  a  certain  extent  a  forgery,  we 
think  he  who  took  the  money  ought  to  refund  it  to  the  extent  to  which 
the  bill  is  invalid.  The  ground  of  the  defendant's  resistance  is,  that 
the  bill  is  not  indorsed;  and  that  whensoever  instruments  are  trans- 
ferred without  indorsement,  the  negotiator  professes  not  to  be  answer- 
able for  their  validity.  This  question  was  much  mooted  in  Fenn  v. 
Harrison.  3  T.  R.  757,  and  it  is  true  to  a  certain  extent,  viz.,  that  in 
the  case  of  a  bill,  note,  or  other  instrument  of  the  like  nature,  which 
passes  by  indorsement,  if  ho  who  negotiates  it  does  not  indorse  it,  he 
does  not  subject  himself  to  that  responsibility  which  the  indorsement 
would  bring  on  him,  viz..  to  an  action  to  be  brought  against  him  as 
indorser ;  but  his  declining  to  indorse  the  bill  does  not  rid  him  of  that 
responsibility  which  attaches  on  him  for  putting  off  an  instrument 
as  of  a  certain  description,  which  turns  out  not  to  be  such  as  he  repre- 


44G  JONES    AND    OTHERS    C.    RYDE    AND    ANOTHER.         [hoOK    II. 

scnts  it.  The  defendant  has  in  the  present  case  put  off  this  instrument 
as  a  navy  bill  of  a  certain  description:  it  turns  out  not  to  be  a  navy 
bill  of  that  amount,  and  tiiereforc  the  money  must  be  recovered  back. 
Bree  r.  Holbech  is  very  distinguishable.  Common  prudence  required 
an  administrator  not  to  take  on  him  more  respcmsibility  than  iiis 
situation  obliged  him  to  incur,  viz.,  to  covenant  that  he  had  a  good 
title  notwithstanding  any  act  done  by  himself;  the  covenant  of  an 
administrator  ordinarily  goes  no  further;  and  when  an  action  is 
brought  against  him  for  money  had  and  received,  he  says,  you  have 
all  the  security  against  me  which  a  person  in  my  situation  ever  gives, 
and  that  does  not  in  the  present  case  make  me  responsible.  Compare 
this  with  the  case  of  Cripps  v.  Reade,  (i  T.  R.  606,  cited  by  my  Brother 
Heath.  There  was  no  deed :  the  whole  rested  in  parol,  and  the  whole 
was  founded  on  the  presumption  that  the  title  was  such  as  it  pur- 
ported to  be:  it  was  not  such  as  it  purported  to  be.  and  therefore  the 
purchase-money  could  not  be  retained.  In  the  present  case,  the  navy 
bill  is  not  such  as  it  purported  to  be,  and  therefore  the  plaintiif  is 
entitled  to  recover.  A  case  somewhat  similar  very  freciuently  occurs 
in  practice  on  which  I  should  not  rely  as  governing  the  law,  but  that 
it  is  said  by  my  Brother  Lens  to  be  sanctioned  on  the  authority  of  a 
case  so  decided  at  nini  prius,  by  M.\nsfield.  C.  J.,  namely,  where 
forged  bank  notes  are  taken.  The  party  negotiating  them  is  not,  and 
does  not  profess  to  be,  answerable  that  the  Bank  of  l^ngland  shall  pay 
the  notes;  but  he  is  answerable  for  the  bills  being  such  as  they 
purport  to  be.    Therefore  the  plaintiff  must  recover  the  difference. 

Heath,  J.  I  am  of  the  same  opinion.  If  a  person  gives  a  forged 
bank  note,  there  is  nothing  for  the  money:  it  is  no  payment.  In  the 
ease  of  Cripps  v.  Reade,  the  defendant  sold  a  term,  supposing  himself 
to  be  the  personal  representative  of  the  deceased,  without  executing 
any  assignment.  Bree  v.  Holbech  was  cited  upon  the  trial  iu'fore 
Lawrence,  J.,  and  the  rule  caveat  emptor  was  urged:  the  court  re- 
fu.sed  a  rule  for  a  new  trial.  Lord  Kenyon,  C.  J.,  said  that  in  Bree 
V.  Holbech  a  regular  conveyance  was  made,  and  no  further  covenants 
were  to  be  added  ;  but  in  the  case  of  C'rip|)s  r.  Reade,  the  whole  had 
passed  by  [)arol,  and  the  money  had  been  paid  under  a  mistake,  and 
the  action  for  money  had  and  received  would  lie  to  recover  it  hack 

Cha-MHRK,  .1.  I  really  cannot  entertain  a  doubt  on  the  (piestion:  if 
the  defendant's  doctrine  coidd  prevail,  it  would  very  materially  im- 
pair the  credit  of  these  instruments.  They  are  not  in  practice  in- 
dorsed (or  not  beyond  the  fir-^t  taker).  .\  tuan  lakes  this  security, 
looking  to  the  persons  who  are  to  j)ay  it  ;  he  take-;  it  on  llie  presump- 
ti<m  that  it  is  a  navy  bill  ;  it  was  once  a  navy  bill,  but  from  the  moment 
wherein  it  was  altered  it  became  of  no  value  whatsoever.  It  is  un- 
necessary to  go  into  the  authorities.  I  agree  it  is  incumbent  on  the 
plaintiff  to  show  quite  clearly  that  the  payment  of  the  £881  16s.  lOd. 
wa.s  of  the  mere  bounty  and  liability  of  government,  but  no  further. 


CHAP.    II.]  T.VRLING    V.    BAXTER,  447 

Everything  that  the  plaintiffs  have  done,  has  heen  done  for  the  good 
of  the  defendant.  There  is  no  doubt  whatever  that  the  judgment 
ought  to  be  for  the  plaintiffs. 

Dallas,  J.  This  is  a  case  in  which  the  parties  are  equally  inno- 
cent, and  have  equal  knowledge,  and  equal  means  of  knowledge.  I 
have  no  doubt  whatsoever  of  the  plaintiffs'  right  to  recover.  The 
case  falls  not  only  within  the  general  principle  that  where  a  man  has 
paid  more  than  the  thing  is  eventually  worth,  and  the  consideration 
fails,  he  may  recover  it  back,  but  also  comes  within  the  express  author- 
ity of  Cripps  V.  Reade.  Upon  the  ground  therefore  that  the  money 
was  in  part  paid  by  mistake,  upon  a  consideration  that  has  failed,  I 
am  of  opinion,  that  the  plaintiffs  are  entitled  to  recover  it  back. 

Judgment  for  the  plaintiffs} 


TARLING  V.  BAXTER. 

King's  Bench,  1827. 

[9  Dowling  tf-  Rylands,  273.] 

Assumpsit,  for  money  paid  bv  the  plaintiff  to  the  use  of  the  defend- 
ant, with  a  count  for  money  had  and  received,  and  the  other  common 
counts.  Plea,  non-assumpsit,  with  a  notice  of  set-off  for  goods  sold 
and  delivered,  and  goods  bargained  and  sold.  At  the  trial  before 
Abbott,  C.  J.,  at  the  London  adjourned  Sittings  after  Hilary  Term, 
1826,  the  plaintiff  obtained  a  verdict  for  £145,  subject  to  the  opinion 
of  this  Court  upon  the  following  case: — 

On  the  4th  of  January,  1825,  the  plaintiff  bought  of  the  defendant 
a  stack  of  hay  belonging  to  the  defendant,  and  then  standing  in  a  field 
belonging  to  the  defendant's  brother.  The  note  signed  by  the  de- 
fendant, and  delivered  to  the  plaintiff,  was  in  these  words: — ''I  have 
this  day  agreed  to  sell  James  Tarling  a  stack  of  hay,  standing  in 
Canonhury  Field,  Islington,  at  the  sum  of  £145,  the  same  to  be  paid 

•In  Ford  and  Warren  r.  Leatheror  (1S17)  4  Bibb,  512,  the  plaintiffs  sued  to 
recover  money  which  had  been  advanced  in  exchange  for  a  bank  note,  which 
had  been  altered  from  five  to  fifty  dollars.  .Judge  Logan  said:  "There  is  no 
doubt  that  an  action  of  assumpsit  will  lie  to  recover  back  money  which  had 
been  advanced  upon  a  fraudulent  fonsidoration,  or  the  want  of  consideration." 

So,  where  an  army  ofiicer  and  others  fraudulently  sold  tobacco,  an  action 
lay  to  recover  money  paid  on  the  contract.  Wordward  v.  Fels  (1866)  1 
Bush,  162;  and  so.  also,  where  a  town  had  paid  money  for  one  as  a  substitute, 
Avho  was  rcallv  a  deserter.     Lebanon  r.  Heath   (1867)   47  N.  H.  353. — Bd. 


448  TAKLlNt;    V.    IJAXTKU.  [BOOK    II. 

on  the  4th  day  of  Fcbntarif  next,  and  to  bo  allowed  to  stand  on  the 
preniiso-s  until  the  1st  day  of  May  next."  And  the  following  note  was 
signed  by  the  plaintiff,  and  delivered  to  the  defendant: — "1  liave  this 
day  agreed  to  buy  of  Mr.  John  Baxter  a  stack  of  hay,  standing  in 
Cauonbury  Field,  Islitiytun,  at  the  sum  oJ[  £145,  the  same  to  be  paid 
on  the  4th  day  of  February  next,  and  to  be  allowed  to  stand  on  the 
premises  until  the  1st  day  of  May  next,  the  same  hay  not  to  he  cut  till 
paid  for.  January  4th,  18:^5."  At  the  meeting  at  which  the  notes 
were  signed,  but  after  the  signature  thereof,  the  defendant  said  to 
the  plaintiff,  "You  will  particularly  oblige  me  by  giving  me  a  bill 
for  the  amount  of  the  hay."  The  plaintiff  rather  objected.  The 
defendant's  brother,  iS.  Baxtrr.  on  the  Sth  of  the  same  month  of  Jan- 
vary,  took  a  hill  of  exchange  for  £145  to  the  plaintiff,  drawn  upon  liim 
by  the  defen<lant,  jjayai^le  one  month  after  date,  whicli  the  plaintiff 
accepted.  The  defendant  afterwards  indorsed  it  to  George  Baxter, 
and  the  plaintiff  paid  it  to  one  Taylor,  the  holder,  when  it  became 
due.  The  stack  of  hay  remained  on  the  same  field  entire  until  the 
20th  of  January,  1825,  when  it  was  accidentally  wholly  consumed  by 
fire,  without  any  fault  or  neglect  of  either  party. 

.\  ftnv  days  after  the  fire,  the  plaintiff  a])plied  to  the  defendant,  to 
know  what  he  meant  to  do  when  the  bill  became  due.  The  defendant 
said,  "I  have  paid  it  away,  and  you  must  take  it  up  to  be  sure;  1  have 
nothing  to  do  with  it:  why  did  you  not  remove  the  hay?"  The  plain- 
tiff said,  "I  could  not ;  there  was  a  memorandum  that  it  should  not 
be  removed  until  the  bill  was  paid:  would  you  have  sufft-red  it  to  be 
removed  ?"  The  defendant  said,  "Certainly  not."  The  defendant's 
set-off  was  for  the  price  of  the  hay,  agreed  to  be  sold  as  aforesaid. 
The  (juestion  for  the  opinion  of  the  Court  was,  whether  the  plaintiff, 
under  the  circumstances,  was  entitled  to  recover  the  sum  of  £115,  or 
any  part  thereof. 

Bayley,  J. — There  is  no  doubt  about  the  principle  of  law  which 
applies  to  this  ca.se;  it  is  j)erfectly  clear  that  the  loss  must  l)e  borne 
by  the  party  in  whom  the  property  was  vested  at  the  time  of  its 
destruction  by  fire.  The  (pu'slion.  therefore,  is,  in  whom  was  the 
property  in  this  hay  vested  at  that  time?  By  the  contract  note  de- 
livered to  the  plaintiff,  the  defendant  agreed  to  sell  to  the  plaintiff 
a  stack  of  hay,  standing  in  Cananbury  Firlil,  for  the  sum  of  £115. 
the  same  to  be  paid  for  on  the  Ith  day  of  February  next,  and  to  be 
allowed  to  stand  on  the  premises  until  the  Isl  day  of  Mny  next.  That 
was  a  eontniet  for  an  ininiediale  sale;  it  was  not  prosj)ective.  Then  in 
whom  did  the  projx'rly  by  virtue  of  that  contract  vest?  The  r'lzht 
of  property  and  the  right  of  possession  are  distinct.  The  right  of 
property  may  be  in  one  person,  and  the  right  of  possession  in  another. 
The  vendor  may  have  a  lien  upon  the  goods  he  has  sold — a  »|ualified 
riu'ht  to  retain  possession  of  them  until  the  price  is  paid — while  the 

plMiirrtv    in    lln  III    iiiiiv   lie   in   tlie   vender.       if.   therefore,    it    was   the   in- 


CllAl'.    II. J  TAKLIXG    V.    UAXTER.  449 

tention  of  the  parties  in  this  case,  that  the  vendee  should  by  virtue 
of  the  contract  innnediately  acquire  a  right  of  property  in  the  hay, 
and  tlie  vendor  a  right  of  proj)erty  in  the  price,  the  fact  that  the  hay 
was  not  to  be  \nx\d  for  until  a  future  period,  and  that  it  was  not  to 
be  cut  until  it  was  paid  for,  makes  no  difference.  The  settled  rule  of 
law  is,  that  where  there  is  an  immediate  sale,  and  nothing  remains 
to  be  done  by  the  vendor  as  between  him  and  the  vendee,  the  property 
in  the  thing  sold  vests  in  the  vendee,  and  then  all  the  consequences 
resulting  from  the  vesting  of  the  property  follow,  one  of  which  is  that 
if  the  goods  are  lost  or  destroyed,  the  loss  must  be  borne  by  the  vendee. 
In  this  case  the  buyer's  contract  note  imports  an  immediate,  perfect, 
absolute  agreement  of  sale,  and  I  think  the  true  construction  of  the 
contract  is,  that  the  parties  intended  an  immediate  sale;  and  if  that  is 
so,  it  follows  that  the  property  in  the  hay  vested  in  the  vendee,  and 
that  he  must  bear  the  loss.  I  am.  therefore,  of  opinion,  that  the  de- 
fendant is  entitled  to  judgment  of  non-suit. 

HoLROYD,  J. — I  am  also  of  opinion  that  there  was  an  immediate 
and  not  prospective  sale  of  the  hay  in  this  case,  though  coupled  with 
a  stipulation  on  the  part  of  the  vendee,  that  he  would  not  cut  it  until 
a  future  period.  It  is  a  rule  in  every  case  of  a  sale  of  goods,  that  if 
nothing  remains  to  be  done  on  the  part  of  the  seller,  as  between 
him  and  the  buyer,  before  the  goods  are  to  be  delivered,  the  property 
in  the  goods  passes  immediately  to  the  buyer,  and  the  property  in  the 
price  to  the  seller;  but  that  if  anything  remains  to  be  done  on  the 
part  of  the  seller,  the  property  does  not  pass  until  that  has  been  done. 
In  this  case,  therefore,  I  am  of  opinion,  not  only  that  the  property 
in  the  hay  passed  immediately  to  the  buyer  by  virtue  of  the  contract, 
but  also  that  the  seller  thereby  immediately  acquired  a  ])ro]U'rty  in 
the  price  agreed  to  be  paid  for  the  hay,  although  the  payment  was  not 
to  be  made,  or  the  hay  to  be  cut,  until  a  future  period.  Then  the 
property  in  the  hay  having  passed  to  the  buyer,  and  the  hay  having 
been  accidentally  destroyed  before  the  day  of  payment,  the  buyer 
must  bear  the  loss. 

LiTTLEDALE,  J. — There  was  an  absolute  agreement  on  the  4th  of 
January  for  the  sale  and  purchase  of  the  hay,  to  be  paid  for  in  a 
month.  According  to  the  seller's  contract  note,  the  buyer  might 
have^cut  and  removed  the  hay  immediately.  By  the  buyer's  contract 
note  it  was  stipulated  that  he  should  not  cut  the  hay  until  it  was  paid 
for.  But  the  property  in  the  hay  had  already  passed  to  him  by  the 
first  contract  of  sale,  and  all  that  he  did  afterwards  was  to  waive  his 
right  to  the  immediate  possession.  Then  the  property  having  passed 
to  the  buyer,  the  loss  must  fall  on  him. 

Judgment  of  nonsuit. 


•15 (J  YOUNG   V.   COLE.  [BOOK   II. 

YOUNG  V.  COLE. 
In  the  Common  Pleas,  April  29, 1837. 
[3  Bingham's  New  Cases,  724.] 

Action  for  money  paid  by  the  plaintiff  to  the  use  of  the  defendant,, 
and  for  money  had  and  received  by  the  defendant  to  the  use  of  the 
plaintiff. 

TIk'  plaintiff,  a  stockbroker,  was  employed  by  the  defendant  in 
April,  183G,  to  sell  for  him  four  Guatemala  bonds,  of  £254  each. 

The  plaintiff,  in  three  or  four  days,  sold  them  to  Briant  for  £300, 
and  deducting  £1  56.  for  his  commission,  paid  the  defendant  £298  15s. 

Briant,  who  was  conversant  with  the  usages  of  the  Stock  Exchange, 
kept  the  bonds  two  days,  and  then  sold  them  again. 

The  bonds  in  question  were  not  stamped.    But, 

In  1829  the  Guatemala  government  had  issued  an  order,  which  was 
advertised  in  the  London  newspapers,  requiring  the  holders  of  such 
bonds  to  produce  them,  and  have  them  stamped  by  an  agent  of  that 
government  within  a  certain  time;  in  default  of  which  they  would 
not  be  recognized  by  the  state.  Evidence  of  the  advertisement  was 
offered  and  rejected  ;  but  it  was  proved  that  since  that  time,  unstamped 
Guatemala  I><in(!>  were  not  a  marketable  commodity  on  the  Stock  Ex- 
change. 

Upon  that  ground,  Briant's  vendee  soon  returned  the  bonds  in 
question.  Briant,  rejjri'senting  the  nuitter  to  the  plaintiff,  the  ])lain- 
tiff,  without  communicating  with  the  defendant  or  returning  the 
bonds,  refunded  what  Briant  had  paid  him,  and  now  sought  to  re- 
cover the  amount  which  he  had  himself  paid  over  to  the  defendant. 

The  defendant,  upon  being  applied  to,  wrote  to  say  that  he  was 
agent  only  as  to  a  part  of  the  bonds ;  but  that,  if  the  payment  had 
been  made  for  his  own  part,  he  would  desire  his  clerk  to  reimburse  the 
plaintiff.    .\t  the  trial  he  did  not  show  that  all  the  bonds  were  not  his. 

Tin-  plaintiff  could  find  no  one  in  this  country  who  had  authority 
now  to  stamp  the  bonds;  but  one  witness  said  he  had  procured  a  stamp 
to  bond-?  of  the  same  description. 

Both  parties,  at  the  time  of  the  transaction,  were  ignorant  that  a 
stamp  was  necessary.  It  was  proved  tliat  brokers  on  the  Stock  Ex- 
chnntre  do  business  as  principals,  in  dealing  with  foreign  stock,  and 
are  liable  to  be  expelled  if  they  do  not  make  good  their  differences. 
The  defendant's  name  wa*^  not  menti(»ned  by  the  plaintiff  to  Briant. 

Dn  behalf  of  the  defendant,  it  was  olgected  at  the  trial  before 
TlNDAL,  C.  J.,  that  under  these  circumstances  the  plaintiff  could  not 
recover  on  the  declaration  for  money  paid  or  money  had  and  received; 
but  should  have  declared  specially  on  the  implied  warranty  by  the 


CllAl'.    11.  I  YOUXG    V.    COLE.  451 

defendant  that  the  bond.s  he  offered  for  sale  were  marketable  bonds. 
Whereupon, 

A  verdict  was  taken  for  the  plaintiff  for  the  amount  the  defendant 
had  received  from  him;  with  leave  for  the  defendant  to  move  to  set 
the  verdict  aside  and  enter  a  nonsuit  instead. 

Sir  F.  Pollock  accordingly  moved  the  court  to  that  effect,  urging, 
that  after  Briant  had  kept  the  bonds  for  a  length  of  time  sufficient  to 
enable  him  to  decide  whether  he  would  make  them  his  own  or  not, 
and  had  actually  sold  them  to  a  third  person,  the  plaintiff  had  no  right 
to  call  on  the  defendant  for  a  payment  which  the  plaintiff  was  not 
compellable  to  make;  at  all  events,  not  unless  he  had  apprised  the 
defendant  of  what  he  was  about  to  do,  and  had  returned  the  bonds 
so  as  to  have  afforded  the  defendant  the  opportunity  of  replacing 
them  with  stamped  instruments.  In  Street  v.  Blay,  2  B.  &  Ad.  456, 
it  was  held,  that  a  person  who  had  purchased  a  horse  warranted 
sound,  sold  it  again,  and  then  repurchased  it,  could  not,  on  discover- 
ing that  the  horse  was  unsound  when  first  sold,  require  the  original 
vendor  to  take  it  back  again ;  nor  could  he  by  reason  of  the  unsound- 
ness, resist  an  action  by  such  vendor  for  the  price. 

Wilde,  Serjt.,  and  Ogle  showed  cause. 

F.  Robinson  in  support  of  the  rule. 

TiNDAL,  C.  J.  It  appears  to  me,  that  the  sum  for  which  the  verdict 
has  been  given  is  properly  called  money  received  by  the  defendant  to 
the  use  of  the  plaintiff.  The  money  which  the  plaintiff  delivered  to 
the  defendant  was  his  own  money,  for  he  had  sold  the  bonds  as  a 
principal  to  Briant,  and  was  subject  to  all  the  responsibilities  of  a 
principal.  He  delivered  the  money  to  the  defendant  on  an  under- 
standing that  the  bonds  he  had  received  from  the  defendant  were  real 
Guatemala  bonds,  such  as  were  salable  on  the  Stock  Exchange.  It 
seems,  therefore,  that  the  consideration  on  which  the  plaintiff  paid  his 
money  has  failed  as  completely  as  if  the  defendant  had  contracted 
to  sell  foreign  gold  coin  and  had  handed  over  counters  instead.  It 
is  not  a  question  of  warranty ;  but  whether  the  defendant  has  not 
delivered  something  which,  though  resembling  the  article  contracted 
to  be  sold,  is  of  no  value. 

The  remaining  question  is.  whether  the  plaintiff  had  a  right  to 
rescind  the  contract  he  had  entered  into  with  Briant.  It  is  to  be 
observed  that  in  that  contract  the  defendant's  name  was  never  used; 
there  was  no  contract  between  him  and  Briant ;  the  plaintiff  was  the 
only  person  known  to  Briant.  But  sto]i]ung  short  of  that,  the  uni- 
versal custom  of  the  Stock  Exchange  would  authorize  the  plaintiff 
to  rescind  the  contract  without  consulting  the  defendant:  and  the 
defendant  has  been  in  no  respect  damaged  by  what  the  plaintiff  has 
done. 

There  is,  however,  another  ground  on  which  the  verdict  stands  clear 
of  objection;  that  is,  that  after  the  defendant  was  aware  of  all  that 


452  FRANK    r.    LANIKH.  [hoOK    II. 

had  been  dorn',  he  wrote  to  say  that  if  tlie  bonds  were  his  own,  he 
would  send  his  clerk  to  pay  the  plaintiff  the  amount.  Having  omitted 
at  the  trial  to  show  that  he  held  them  in  the  cai^aeity  of  ajrent,  as  he 
had  assiTted,  his  letter  is  a  ratification  of  what  the  plaintilf  had  done, 
and  the  verdict  ought  not  to  be  disturbed. 

P.\RK,  J.,  concurred. 

Bo.s.WQTET,  .1.  1  a.^ree  in  the  principle  of  the  cases  which  have 
been  cited  as  to  breach  of  wananty,  but  this  is  not  a  case  of  that  de- 
scription. Here,  no  consideration  has  been  given  for  the  money  re- 
ceived by  the  defendant:  the  bonds  he  delivered  to  the  plaintiff  were 
not  Guatemala  bonds,  but,  on  the  Stock  Exchange,  wortliless  paper; 
and  the  payment  nuide  by  the  plaintiff  to  Briant  was  not  voluntary. 
According  to  the  principle  established  by  Child  i'.  Morley,  the  defend- 
ant was  bound  to  reimburse  the  plaintiff  what  he  was  thus  compelled 
to  pay.  For  it  appeared  to  be  the  custom  of  the  Stock  Exchange,  that 
in  these  cases  the  broker  is  treated  as  ))rin('ipal,  and  liable  to  be  ex- 
pelled if  ho  does  not  make  good  his  dilFerencos.  Upon  either  of  the 
counts,  therefore,  the  plaintiff  may  sustain  this  action.  And  even 
upon  the  defendant's  letter,  unless  he  showed  the  i)onds  not  to  have 
been  his  own,  the  j)laintiff  is  entitled  to  retain  the  verdict. 

CoLTMAN,  J.  I  am  of  the  same  opinion.  The  first  question  is. 
whether  the  plaintitf  was  entitled  to  rescind  the  contract  with  Briant; 
and  I  am  of  opinion  he  was.  The  bonds  which  he  had  sold  at  the 
defendant's  request  were  not  Guatemala  bonds,  in  the  sense  of  the 
Stock  Exchange.  Therefore,  even  considering  the  plaintiff  only  as 
agent,  when  he  received  authority  from  the  defendant  to  sell  the  bonds 
he  received  an  implied  authority  to  act  as  all  brokers  do  ujion  similar 
occasions;  that  is,  to  rescind  the  contract  if  the  article  delivered  turns 
out  not  to  be  the  article  sold. 

Rule  du^rhargcd.^ 


Frank  v.  iMtiicr  (1883)  91. X.  Y.  11'.'.— Dan  roitni .  J.  'Tpon  the 
pleadings,  the  questions  were,  whether  certain  written  instruments 
purporting  to  be  obligations  of  the  T'liitcMl  States,  known  as  'seventy- 

Mn  Hrrwstcr  r.  Hurnptt  (1S7R)  125  Muss.  OH.  tlw  plaiiitilT.  hftvinp  pur- 
chnH«'<l  «r)unt«'rf«-it  I'nitrd  States  horHls.  wnw  pcriiiif tr-d  to  n-i-ovor  the  money 
pnid  for  thoni;  and  h«t  Nicolay  r.  t'lip'r  {  IHKO)  80  N.  Y.  r)4.  .\m\  so  ns  to 
money  pair!  for  eoiintorfj'it  biljs.  Yoiin)?  v.  .AdaniM  (181(^)  6  Mass.  182;  Kent 
V.  HornHtiin  (188(1)  12  .Allen,  342;  or  on  a  bill  of  e.xchan^'e  materially  altered 
aft<T  .M-eeptanre.     Master  v.  Miller    (1701)    «  T.  It.  .120. 

Nor  is  a  for>,'ed  note  eonsidered  j)iiymeMt.  Dinsdalo  r.  Ijineliester  (180.'{)  4 
E»p.  201  ;  Markle  f.  Hatfield  (  1807)  2  .Folins.  4r.:{;  nor  a  dinlionorefl  draft.  I'lick- 
ford  r.  .Miixwell   (175»4)   AT.  1{.  Wl. 

Money  paid  on  a  for^'ed  endorsement  may  '>f  recovered  from  an  innocent 
holder.    Carpenter  i'.  National  Bank   (1877)    123  Mas.s.  00.— En. 


CHAP.    II.]  THOMPSON    V.    GOULD.  -153 

thirty'  notes,  numbered  respectively  16074,  160436,  68573,  140133, 
were  in  fact  sold  by  the  defendants  to  the  plaintiffs,  and  if  so,  were 
they  forgeries?  At  the  trial  evidence  was  given  by  the  plaintiffs 
upon  these  points,  but  the  defendants  controverted  none  of  it,  and 
we  agree  with  the  two  courts  by  whom  the  facts  in  issue  have  been 
examined,  tha:t  the  testimony  established  the  identity  of  the  notes  as 
those  sold  by  the  defendants,  and  it  being  unanswered,  that  there 
was  no  question  upon  which  the  opinion  of  the  jury  was  necessary. 
The  appellants,  however,  claim  that  the  plaintiffs  were  negligent  in 
not  sooner  detecting  the  forgery,  and  also  in  failing  to  return  the 
notes.  No  authority  is  cited  to  the  effect  that  one  who  sells  as  genuine, 
a  forged  note,  can  avoid  his  liability  to  refund  because  of  delay  by 
his  vendee  in  detecting  the  forgery,  or  in  giving  notice  of  it.  The 
duty  of  the  vendee  to  make  such  examination,  cannot  be  greater  than 
was  the  duty  of  the  vendor  to  make  it,  before  he  parted  with  the  paper 
and  received  its  price,  nor  will  the  mere  lapse  of  time  confirm  his 
title  to  the  purchase  money  if  the  purchaser  exercised  reasonable 
diligence  in  giving  notice  after  the  forgery  was  ascertained.  Weiser 
V.  Dcnison,  10  N.  Y.  68;  Bank  of  Commerce  i'.  Union  Bank,  3  X.  Y. 
230;  Kingston  Bank  r.  Ettinge,  40  N.  Y.  391;  Heiser  v.  Hatch, 
86  N.  Y.  614,  opinion  by  Folger,  J.'"- 


THOMPSON  V.  GOULD. 

Supreme  Judicial  Court  of  Massachusetts,  1838. 

[20  Pickering,  134.] 

Indebitatus  assumpsit  to  recover  back  from  the  defendant,  the 
sums  of  money  mentioned  in  the  receipts  hereafter  set  forth.  The 
parties  stated  a  case. 

About  the  8th  of  May,  1835,  the  defendant  offered  to  sell  the  estate 
to  the  plaintiff  for  3700  dollars,  and  the  plaintiff  agreed  to  take  it 
at  that  price.  The  defendant  undertook  to  procure  a  discharge  of 
the  mortgage,  it  being  a  part  of  the  agreement  that  the  plaintiff  should 
have  the  estate  free  from  incumbrance.  The  plaintiff  requested  the  de- 
fendant to  make  certain  repairs  on  the  house,  and  agreed  to  pay  for 
them.  These  agreements  were  parol.  Between  the  8th  of  May  and 
the  time  of  the  fire  on  the  18th.  the  plaintiff  carried  into  the  house 
articles  of  furniture,  and  all  tlu'  tilings  which  he  intended  to  jilace 
in  the  house.  Diiring  the  same  period  he  was  frequently  at  the  hon.^ie 
superintending  and  directing  the  rejiairs.     On  the  14th  of  May  the 

'See  Rick  v.  Kelly  (1858)  30  Pa.  St.  527;  Schrocder  r.  Harvey  (1S74)  75 
111.  638.— Ed. 


454:  THOMPSON  r.  gould.  [book  II. 

plaintiff  paid  the  defendant  2000  dollars,  and  took  a  receipt  as  fol- 
lows :  "Boston,  May  14,  1835.  Received  of  Samuel  Thompson  six- 
teen hundred  dollars  in  part  pay  for  estate  sold  him  by  me,  in  Salem 
street.  Do.  four  hundred.  Thomas  CJould."  On  the  IGth  of  May 
the  defendant  told  the  plaintiff  that  he  could  not  get  the  mortgage 
discharged,  and  asked  tiie  jiiaintill"  what  he  should  do.  Tiie  plaintiff 
replied,  that  he  would  pay  him  the  rest  of  the  money,  if  he  wished  it, 
but  he  must  get  the  mortgage  discharged  the  best  way  he  could.  On 
the  same  day  the  plaintiff  paid  the  defendant  1848  dollars  and  took 
a  receipt  as  follows:  "Boston  May  10,  1835.  Received  of  Samuel 
Thompson  eighteen  hundred  and  forty-eight  dollars.  Thomas  Gould." 
The  payments  by  the  plaintiff  e.xceeded  the  price  of  the  estate  and 
the  cost  of  repairs  by  the  sum  of  $82.33.  Between  10  and  12  o'clock 
on  the  18th  of  May  the  defendant  paid  the  mortgage  and  received 
the  mortgage  deed  and  policy  of  insurance,  with  an  indorsement 
on  the  policy  as  follows:  "May  18,  1835.  Value  received,  the  M.  H. 
Life  Ins.  Co.  hereby  release  all  their  claim  on  this  policy.  N.  Bow- 
ditch,  Actuary;"  and  before  2  o'clock  of  the  same  day  the  actuary 
discharged  the  mortgage  on  the  record.  Tiie  policy  was  not  assignable 
except  with  the  assent  of  the  assurers,  and  no  a])plication  for  their 
assent  was  made. 

If  in  tiie  opinion  of  the  court  the  plaintiff  was  entitled  to  recover 
the  whole  or  any  part  of  Ids  demands,  tiie  defendant  was  to  be  de- 
faulted;  if  not,  the  plaintiff  was  to  ho  nonsuited. 

Wilde,  J.,  delivered  the  opinion  of  the  Court.  This  is  an  action  of 
assumpsit,  in  wliich  tiie  ])laintitr  claims  a  certain  sum  of  money 
paid  l)y  him  to  the  defendant  on  a  consideration  wiiich  has  failed. 
The  money  was  paid  on  a  parol  agreement  to  purchase  of  the  de- 
fendant a  certain  liouse  and  estate,  whicli  were  to  be  convoyed  to  the 
plaintiff  free  and  clear  of  all  incuml)rances,  tiie  defendant  undertaking 
to  discharge  a  mortgage  on  the  estate,  wliich  was  suliseijuently  done, 
but  before  the  estate  was  conveyed  to  tlie  plaintiff  the  house  was 
consumed  by  fire  and  the  material  question  is,  which  of  the  parties 
shall  eventually  sustain  this  loss. 

A  previous  question  is  int('rj)osed,  arising  from  an  objection  to  the 
form  of  the  action,  which,  although  it  does  not  affect  the  merits  of  the 
case,  is  nevertheless  suniciont.  if  well  founded,  to  defeat  the  present 
action.  It  is  contended  l)y  tiie  defendant's  counsel,  tliat  tiie  money 
was  paid  on  an  i-xecutory  contract  still  subsisting,  and  tliat  liie 
plaintiff's  remedy,  if  Ik-  Ihk  nny.  i<  Iiy  an  action  on  tlie  contract,  or  l»y 
a  bill  in  equity. 

It  cannot  be  denied,  tliat  if  tiie  money  demandt'd  were  ]^aid  <»n  a 
valid  subsisting  contract,  tlie  |)laintifT's  reme(ly  for  liie  non-|)erform- 
ance  by  the  defendant,  would  be  l)y  an  action  on  the  contract,  and  that 
a  general  indel)itatus  assumpsit  to  recover  the  purchase  money  could 
not  be  maintained.     But  it  is  very  clear  that  the  parol  contract  in 


CHAP.    II.]  THOMPSONT    V.    GOULD.  455 

the  present  case  is  void  b}'  the  statute  of  frauds,  and  that  a  part 
performance  of  the  agreement,  by  payment  of  the  purchase  money, 
does  not  take  the  case  out  of  the  statute.  In  the  case  of  Davenport  v. 
Mason,  15  Mass.  K.  9-1,  it  was  said  that  the  statute  does  not  wholly 
vacate  the  contract,  but  only  inhibits  all  actions  brought  to  enforce 
it,  and  that  the  doctrine  of  courts  of  equity  as  to  the  effect  of  part 
performance  of  a  parol  agreement  for  the  conveyance  of  real  estate, 
seemed  to  have  been  recognised  by  the  courts  of  law;  and  the  case  of 
Crosby  v.  Wadsworth,  6  East,  602,  was  referred  to  as  a  ease  turning 
upon  this  principle.  But  the  case  of  Davenport- f.  Mason  was  decided 
on  a  different  point.  And  no  case  can  be  found,  where  in  an  action 
on  the  contract  it  has  been  decided,  that  part  performance  of  a  parol 
agreement  for  the  conveyance  of  land  would  take  a  case  out  of  the 
statute.  On  the  contrary,  it  was  decided  in  the  case  of  Kidder  v. 
Hunt,  1  Pick.  328,  that  no  action  would  lie  on  such  a  contract,  and 
that  part  performance  Avould  not  take  it  out  of  the  statute. 

It  has  been  argued  that  this  contract  may  be  enforced  in  equity. 
But  if  it  might  be.  that  would  not  affect  the  plaintiff's  legal  rights. 
This  Court,  however,  has  no  authority  to  decree  a  specific  performance 
of  a  parol  contract.  Nor  could  this  contract  be  enforced  by  a  Court 
of  equity  having  jurisdiction  of  the  subject  matter,  for  by  the  destruc- 
tion of  the  house  the  defendant  is  no  longer  able  to  perform  his  part 
of  the  contract.  He  may  make  compensation  for  the  destruction  of 
the  house,  but  generally  a  purchaser,  independently  of  special  cir- 
cumstances, is  not  to  be  compelled  to  take  an  indemnity,  but  he  may 
elect  to  recover  back  the  purchase  money,  if  paid  in  advance,  and  if  the 
vendor  refuses  or  is  unable  on  his  part  to  perform  the  contract,  and  the 
purchaser  has  no  legal  remedy  to  recover  damages.  1  Sudg.  Tend. 
(9th  edit.)  304;  Hepburn  v.  Auld,  5  Cranch,  263;  Waters  v.  Travis, 
9  Johns.  R.  464. 

The  only  question,  therefore,  is,  whether  the  plaintiff  or  the  de- 
fendant is  to  sustain  the  loss  by  fire.  In  respect  to  the  loss  of  personal 
property,  under  the  like  circumstances,  the  principle  of  law  is  perfectly 
clear,  and  well  established  by  all  the  authorities.  When  there  is  an 
agreement  for  the  sale  and  purchase  of  goods  and  chattels,  and  after 
the  agreement,  and  lief  ore  the  sale  is  completed,  the  pro]ierty  is  de- 
stroyed by  casualty,  the  loss  must  be  borne  by  the  vendor,  the  property 
remaining  vested  in  him  at  the  time  of  its  destruction.  Tarling  v. 
Baxter,  9  Dowl.  &  Ryl.  276;  Hinde  v.  Whitehouse.  7  East,  558;  Eugg 
V.  ]\Iinett,  11  East,  210.  Xo  reason  has  been  given,  nor  can  be  given, 
why  the  same  principle  should  not  be  applied  to  real  estate.  The  prin- 
ciple in  no  respect  depends  on  the  nature  and  quality  of  the  property, 
and  there  can  therefore  be  no  distinction  between  personal  and  real 
estate.  And  so  it  is  laid  down  by  Chancellor  Kent,  in  his  Com- 
mentaries. "Thus  if  A  sells  his  horse  to  B,  and  it  turns  out  that  the 
horse  was  dead  at  the  time,  though  the  fact  was  unknown  to  ihe 


45G  THOMPSON  r.  could.  [book  li. 

parties,  the  contract  is  necessarily  void.  So  if  A,  at  Xew  York,  sells  to 
B  his  house  and  lot  in  Albany,  and  the  house  should  lia])[)en  to  have 
been  destroyed  by  fire  at  the  time,  and  the  parties  ecjually  ignorant 
of  the  fact,  the  foundation  of  the  contract  fails,  provided  the  house, 
and  not  the  ground  on  which  it  stood,  was  the  essential  inducement 
to  the  purchase."     2  Kent's  Comm.   ('-id  edit.)   3G7. 

The  same  principle  applies  to  an  agreement  to  purchase  a  house, 
as  in  the  present  case,  the  house  being  casually  destroyed  before  the 
purchase  is  completed.  Neither  party  being  in  fault,  the  loss  must 
be  borne  by  the  owner  of  the  property. 

A  different  doctrine  has  been  adopted  in  equity,  founded  on  the 
fiction,  that  whatever  is  agreed  to  be  done,  shall  be  considered  as 
actually  done.  So  that  if  there  is  an  agreement  to  purchase,  it  is 
equivalent  to  an  actul  purchase,  in  conteniplation  of  equity;  and 
the  purchaser  must  bear  any  loss  which  may  hapjien  to  the  estate 
between  the  agreement  and  the  conveyance.  In  Paine  v.  Meller, 
6  Ves.  349,  where  A  had  contracted  for  the  purchase  of  some  houses 
wliicii  were  burned  down  before  the  conveyance,  the  loss  was  holden  to 
fall  upon  him,  although  the  houses  were  insured  at  the  time  of  the 
agreement  for  sale,  and  the  vendor  permitted  the  insurance  to  expire 
without  giving  notice  to  the  vendee.  Upon  tliis  decision  Sugden 
remarks,  that  it  proceeded  on  the  only  principle  upon  which  it  could  be 
supported,  that  the  purchaser  was  in  equity  the  owner  of  the  estate. 
Sugd.  Vend.  (9th  edit.)  278.  And  in  Ex  parte  Minor.  11  Ves.  559, 
whore  a  similar  accident  happened  to  an  estate  sold  before  a  master, 
and  the  report  had  only  been  confirmed  nisi,  the  loss  was  holden  to 
fall  on  the  vendor. 

Formerly,  however,  a  different  doctrine  was  admitted  in  courts  of 
equity.  In  Stent  r.  Baylis,  2  P.  AVnis.  220,  the  Master  of  the  Rolls 
said  ,"If  I  shojild  buy  a  house,  and  before  such  time  as  by  the  articles 
I  am  to  pay  for  the  same,  the  house  i)urnt  down  by  ca.sualty  of  fire,  I 
shall  not  in  ofpiity  l)e  bound  to  pay  for  the  house,  and  yet  the  house 
may  be  built  up  again."  So  upon  a  sale  of  a  leasehold  for  lives,  and 
previously  to  the  conveyance  one  of  the  lives  drojqied,  although  a 
specific  performance  was  decreed,  the  Lord  Keeper  intimated,  that  if 
all  the  lives  had  been  dropped  before  the  conveyance  the  decision 
might  be  different,  for  that  the  money  was  to  be  paid  for  the  con- 
vcyanee,  and  no  estate  being  left,  there  could  be  no  conveyance. 
Thus  it  appears,  that  formerly  the  principle  was  the  same  in 
equity  a.s  it  ever  ha^  been  in  law.  .\nd  in  one  resjx'et  the  prin- 
ci[)le  still  remains  the  same,  nanitly,  that  the  loss  of  the  pro|)erty 
under  similar  circumstances  as  those  in  the  present  case,  must  be 
borne  by  th(!  owner  of  the  property  at  the  time  the  loss  liappened; 
and  it  gecms  impossible  that  any  diff<'rent  princi})le  can  be  adopted. 
As  we  therefore  cannot  recognise  the  fiction  in  e(|nity,  by  whieh  a  pur- 
chase  and   ar    agreement   to   purchase   are   held    to   be  siiiilar,   and 


CIIAl'.    li.]  TIIO.MI'SOX    V.    GOULD.  457 

indeed  indentical  in  respect  to  the  present  question,  we  must  hold 
that  the  defendant  is  bound  to  repay  the  purchase  money,  as  the 
consideration  upon  which  it  was  paid  has  wholly  failed,  the  plaintiff 
not  being  bound,  under  the  circumstances  of  the  case,  to  accept  a 
deed  of  the  land.  Where  the  contract  is  entire,  the  vendor  cannot 
recover  or  retain  part  of  the  purchase  money,  where  he  cannot  con- 
vey or  make  a  good  title  to  the  whole  estate  sold. 

The  rule  in  chancery  on  this  point  also,  is  somewhat  different 
and  depends  more  on  the  discretion  of  the  court ;  which  has  given 
rise  to  many  conflicting  opinions  and  decisions. 

In  the  case  of  the  Cambridge  wharf,  upon  which  Lord  Kexyox, 
when  sitting  in  chancery,  in  the  case  of  Poole  v.  Shergold,  1  Cox's  Rep. 
273,  made  some  remarks,  the  vendor  made  title  to  all  the  estate  but 
the  wharf,  and  that  part  of  the  land  was  the  principal  object  of  the 
vendee  in  making  the  purchase,  yet  the  purchaser,  who  had  con- 
tracted for  the  house  and  wharf,  was  compelled  to  complete  the  pur- 
chase. This  decision,  as  Lord  Kenyon  truly  remarked,  was  contrary 
to  all  justice  and  reason.  In  other  cases  a  more  reasonable  doctrine 
has  prevailed,  which  is,  "that  if  there  be  a  failure  of  title  to  part, 
and  that  ap])ears  to  be  so  essential  to  the  residue,  that  it  cannot 
reasonably  be  supposed  the  purchase  would  have  been  made  without  it. 
or  as  in  the  case  of  the  loss  of  a  mine,  or  of  water  necessary  to  a  mill, 
or  of  a  valuable  fishery  attached  to  a  parcel  of  poor  land,  and  by 
the  loss  of  which  the  residue  of  the  land  was  of  little  value,  the  con- 
tract may  be  dissolved  in  toto."  This  rule  was  adopted  in  Pennsyl- 
vania, in  the  case  of  Stoddart  v.  Smith,  5  Binney,  355,  and  a  similar 
rule  has  been  adopted  in  South  Carolina.  Pringle  v.  Executors  of 
Witten,  1  Bay,  256;  Tunno  v.  Fludd,  1  McCord,  121. 

"The  good  sense  and  equity  of  the  law  on  this  subject  is."  as  Chan- 
cellor Kent  remarks,  "that  if  the  defect  of  title,  whether  of  lands 
or  chattels,  be  so  great  as  to  render  the  thing  sold  unfit  for  the  use 
intended,  and  not  within  the  inducement  to  the  purchase,  the  pur- 
chaser ought  not  to  be  held  to  the  contract,  but  be  left  at  liberty  to 
rescind  it  altogether.  But  if  the  defects  were  not  so  great  as  to 
rescind  the  contract  entirely,  there  might  be  a  just  abatement  of 
price."  2  Kent's  Comm.  (2d  edit.)  373. 

This  rule,  if  applied  to  the  present  case,  would  not  alter  the  result. 
But  it  is  not  necessary  to  consider  the  case  in  reference  to  this  rule, 
however  reasonable  it  may  be,  as  the  plaintiff  cannot  be  compelled 
to  perform  the  contract ;  and  as  no  fault  can  be  imputed  to  him.  he  is 
entitled  to  recover  back  the  jnirchase  money.  If  the  house  had  not 
been  destroyed,  and  the  plaintiff  had  refused  to  perform  the  contract, 
the  case  would  have  required  a  different  decision. 

Judgment  for  plaintiff} 

'If  the  contract  had  Vieen  for  the  sale  of  ii  house,  then  destruction  of  the 


458  HOBixsoN  V.  bright's  executor.  [book  II. 

ROBIXSOX  V.  BKUillT'S  EXECUTOR. 

Court  of  Aitkals  of  Kkntucky,  18G0. 

1:5  Meicalf,  SO.] 

Judge  Wood  ilolivorod  the  oj)inion  of  tho  court. ^ 

In  Griswold,  &c.  r.  Taylor's  adm'r,  1  Met.  '^30,  it  was  decided,  that 
where  the  consideration  of  a  contract  appears  to  be  valuable  and 
sutficiont.  hut  turns  out  to  he  wholly  false  or  a  mere  nullity;  or  where 
it  may  have  been  actually  good,  hut  before  any  \)i\Tt  of  the  contract 
has  been  performed  by  either  party,  and  before  any  benefit  has  been 
derived  from  it,  the  consideration  wholly  fails,  there  a  promise,  resting 
on  this  consideration,  is  no  longer  obligatory.  And,  accordingly,  in 
the  ca.so  of  a  contract  for  the  sale  and  purchase  of  a  slave,  where 
it  is  made  to  appear  that  before  and  at  the  time  of  such  sale  the  slave 
was  unsound  and  diseased,  and  of  no  value,  and  that  he  afterwards 
died  of  such  disease  and  unsoundness,  there  can  be  no  recovery,  by  the 
seller,  of  the  price  stipulated  to  bo  paid  for  the  slave,  because  of  the 
total  failure  of  the  consideration. 

It  is  said,  iiowever,  that,  in  all  such  cases,  tiierc  must  i)e  a  total 
failure  of  the  consideration ;  for,  if  there  be  a  consideration  left, 
however  much  impain'(l  or  diminished,  it  will  be  sutlieient  to  sustain 
the  contract. 

In  Parsons  on  Contracts,  sec.  14.  page  385,  it  is  laid  down  that 
*Svhero  th«'  consideration  appears  to  be  valuable  and  sutlieient,  but 
turns  out  to  be  wholly  false  or  a  mere  nullity,  .  .  .  the  party  paying 
or  dt'positing  money  upon  it  can  recover  it  back." 

The  case  now  before  the  court  dilTers  from  that  of  (Jriswold,  Sec.  v. 
Taylor's  adm'r,  in  this  respect  only,  that  lirrr  the  money  has  been 
actually  paid  for  the  slave,  now  alleged  to  have  been  of  no  value  at  the 
time  of  the  sale,  and  hence  a  total  failure  of  the  consideration  upon 

hoUHO  would  liiive  df-troyod  tlio  Hjil>jc<'t  timttcr  of  (li«^  sale.  If.  liowcvor,  the 
sal«'  wiTf  rif  tlif  liiiul  iiyon  whii-li  the  Iiouhp  stciod,  tin*  Ikhiso  would  pass  with 
the  land  an  part  thorfof,  and  thoro  wniild  ho  no  failure  of  suhjeet  matter, 
inaMniueh  aH  purehaHor  pot  what  he  harpiined  for,  namely,  tho  land  in  question. 
I'pon  whom  hIuiII  the  Iosh  fall?  The  principal  ease  savH  on  the  vendor;  many 
c-aHOH  liohl  upon  the  ven<lee,  who  in  ropirded  as  the  eipiitalde  owner  from  tho 
time  of  the  eontraet.  The  authorities  are  about  equally  divided,  with  a  xlij^'ht 
preponderan'-e  in  fav<ir  of  the  "e«niit'ilde"  view. 

'^)n  thi»«  r(»nlrf>ver«ty.  nee  the  fnllowiny  artitden.  which  practically  exhaunt 
the  Hiihjej't :  Samuel  Willinton  on  The  Itisk  of  Lokh  after  an  K.xecutory  Contract 
of  Sale  in  the  Civil  nml  Comm.  n  Law.  »  Ilnrv.  L.  R.  02.  70;  ioni.30; 
Judj^e  Krrxrit  on  The  Hurden  of  1>ohm  an  an  Incident  of  the  Kifjht  to  tho 
8pct:iflc  I'erfornuince  of  a  Contrnet.  1  Columliia  L.  K.  1-10. — Ki>. 

'A  part  of  the  fijiinioii  only  in  (fiven. — Ku. 


CHAP.  ir.J  ROBiNsox  V.  bright's  executor.  459 

which  the  money  was  paid,  whereas  in  Griswold  v.  Taylor  the  action 
was  upon  the  promise  to  pay  the  money,  the  consideration  for  the 
promise  having  totally  failed,  as  was  alleged.  In  the  latter  case  it  was 
decided  that  there  could  he  no  recovery  upon  the  promise. 

Xow  the  question  is  presented,  can  money,  which  has  heen  paid  for  a 
chattel  of  no  value  when  sold,  and  where  there  is  thus  a  total  failure 
of  the  consideration  upon  whicli  the  payment  was  made,  be  recovered 
back? 

We  are  unable  to  perceive  any  difference  in  principle  between  the 
two  cases.  If  it  is  unjust  and  unconscientious  in  the  one  to  coerce 
the  payment  of  the  money,  in  the  other  case  it  is  equally  against  justice 
and  good  conscience  to  retain  the  money.  In  either  case  the  party  is 
compelled  to  part  with  his  money  without  having  received  any  value 
Avhatever  for  it. 

And  there  is  ample  authority  for  the  recovery  back,  by  an  inde- 
pendent action,  of  money  paid  upon  a  consideration  believed  at  the 
time  of  the  contract  and  payment  to  be  valuable,  hut  which  was  in 
fact,  at  the  time,  of  no  value  ivhatever. 

In  Spring  v.  Coffin,  10  Mass.  32-35,  it  was  decided  that  a  party  who 
had  paid  money  upon  a  l)argain  by  which  nothing  passed  to  him,  had 
his  remedy  for  the  money,  "as  paid  for  a  consideration  which  has 
failed."  In  Woodward  v.  Cowing,  13  Mass.  216,  it  was  said  by  the 
court,  "where  money  has  been  paid  upon  a  consideration  which  has 
failed,  it  mav  certainly  he  recovered  back  bv  the  party  who  shall 
have  paid  it.""  Xeel  r.  Deens  .1'  Smith,  1  Xott  &  McCord.  210: 
Wharton  v.  O'Hara,  2  Xott  &  McCord,  65. 

In  Murray  &  Co.  v.  Garrett  &  Co.,  3  Call,  373,  the  same  principle 
was  approved  by  the  court  of  appeals  of  A^irginia. 

In  :\Ioses  V.  ^IcFerlan,  2  Burrows,  p.  1012,  it  was  held  (opinion 
by  Lord  Maxsfield),  that  an  action  could  be  maintained  for  money 
paid  upon  a  consideration  which  happened  to  fail,  and  the  defendant 
ought,  ex  cequo  et  bono,  to  refund. 

The  same  doctrine  is  recognized  by  the  supreme  court  of  Massa- 
chusetts in  the  case  of  Harrington  v.  Stratton,  22  Pickering,  510, 
although  that  was  an  action  by  the  payee  against  the  maker  of  a 
promissory  note.  See  Colville  v.  Besley  and  others,  2  Denio,  139; 
5  Humphreys,  496 ;  Charlton  v.  Lay,  opinion  by  Judge  Green. 

In  the  case  now  before  us  it  was  alleged  that  the  negro,  at  the  date 
of  the  sale,  was  unsound  and  of  vo  raJiie.  and  that  there  was 
consequently  a  total  failure  of  the  consideration  upon  which  the  pur- 
chase monev  had  been  paid.  The  petition  stated  facts  sufficient  to 
constitute  a  cause  of  action,  and  which,  if  found  to  be  true,  would 
have  warranted  a  recovery  by  the  plaintiff. 

The  demurrer  ought  therefore  to  have  been  overruled. 

But  to  enable  the  appellant  to  succeed  upon  the  ground  we  have 
been  considerins:.  he  must  show  a  total  failure  of  the  consideration. 


460  DALKS   CASE.  [bOOK    II. 

For  the  error  in  sustaining  the  demurrer  the  judfjinent  of  the 
circuit  court  is  reversed,  and  the  cause  remanded  with  directions  to 
overrule  the  demurrer,  and  for  further  proceedings  not  inconsistent 
with  the  princij)les  of  tliis  opinion.* 


(2)  Mistake  may  be  as  to  the  Title  of  the  Vendor. 

DALE'S  CASE. 

Co.MMoN     IM.HAS.    1.585. 

[Cro.  J-Jliz.  41.] 

Deceit.-  For  that  the  defendant  sold  to  tlie  plaintiff  certain 
goods  as  his  own  goods,  itbi  rerera  they  were  the  goods  of  a  stranger. 

'"Where  a  material  mistake  occurs  in  respect  to  the  nature  of  the  subject- 
matter  of  a  sah',  there  is  no  mutual  assent,  and,  therefore,  the  contract  i«  void. 
Thus,  if  an  article  he  bouj;ht  as  bein<j  one  thinj,',  when  it  is,  in  fact,  a  difTerent 
thinj»,  the  sale  is  voidable.  Conner  r.  Henderson,  15  Mass.  .'Hi).  (Jtid;:e  Stoky 
adds  in  a  note:  'This  class  of  cases  is  usually  treated  as  coniinj:  witliin  the 
purview  of  Iinjtiied  Warranty;  but  if  tliey  can  be  fairly  considered  to  tome 
under  such  a  head,  they  are  also  poverned  by  the  simpler  rules  relatinjj  to  mis- 
take, or  fraud,  which  would  afford  a  surer  remedy  to  the  person  injured.  An 
Implied  Warranty  would  seem  only  In  relate  to  the  quality  or  title  of  an  ar- 
ticle, and  not  to  its  nature.')  As,  where  an  artieje  was  bought  as  'waste  silk,' 
which  could  not  fairly  be  sold  by  siu-h  a  name,  (Jardner  r.  firay,  4  Camp.  144; 
Meyer  r.  F^verth,  id,  22;  or  where  a  certain  material  was  iiroujrht  as  'scarlet 
cutting,'  which  was  not  really  'scarlet  cuttin;.'s,'  Hridf,'e  r.  Waine,  1  Stark 
X.  P.  C.  .')04 ;  see  also  Shepherd  r.  Kain,  o  Harn.  &  .\ld.  240;  or  where  a  stone 
WBH  Hold  as  a  bezoar  stone,  when  it  was  not  such  a  stone,  C'handelor  r.  Ix)pus, 
Cro.  .lac.  4;  f)r,  where  a  bap  conlaininp  pieces  of  leather  and  burnt  clay  and 
bones  were  sold  as  a  'scroon  of  indipo';  the  sale  was  merely  void.  Williams  r. 
SpafTord,  K  Pick.  'IftO." — Story,  Sales,  §  14M.  For  the  doctrines  applied  in  such 
cases,  with  elalior.ile  citatitms,  see  I'.cii jjiiiiiii.  Sales,  7th  ed.  Cli.ipter  on 
"Warranty." 

In  Chapman  r.  Speller  (18.'>(l)  II  (.),  15.  (;21.  <t24.  PatTK.sox,  for  tin-  e(mrt. 
Jinid:  "In  dcj-idinp  for  the  defemlant  un<ler  these  circumstances,  we  wish  to 
ffunrd  apninxt  beinp  supposed  to  doubt  the  ripht  to  recover  back  money  paid 
upon  an  ordinary  purchase  of  a  chattel,  where  the  purehiiser  does  not  have  that 
for    whi«h    he    i>aid." — Ki>. 

*In  Stuart  r.  Wilkins  (177H)  Douglas  IH.  Lord  Manskiki.d,  .\surit.sT  and 
nri.l.rit,  .lustiees,  at'reeinp,  he-Id,  iifler  some  hi'«ilation,  that  assumpsit  was 
the  proper  action  where  there  had  been  an  express  warranty,  an<l  riMuarked  : 
"Selling  for  a  sound  i)ri<e  without  warranty  nuiy  be  a  j^roijnd  for  an  assump-it. 
but    in  HUeh  a  »-iih«>,  it  oupht  to  be  laid  that  the  defendant  knew  of  the  unstmml 

"All  the  eane-*  of  derrit  for  niiHJnfni  tnal  inn  may,  it  seems  to  me,  l>e  liirned 
inUi  aetiftns  of  asHum|>Hit."  I'cr  (Jkohk,  .1.,  in  Pasley  r.  Freeman  (178!t)  .'5  T. 
R.  61,  54.— Eo. 


ClIAI'.    II.]  CROSSE    I'.    GARDNER.  461 

It  was  alleged  that  the  action  did  not  lie,  because  it  was  not  alleged 
that  the  defendant  scictis  that  they  were  the  goods  of  a  stranger.  And 
for  that  reason  Tehiam  and  Wyndiiaai  held  the  action  did  not  lie, 
hut  if  it  liad  been  so  alleged,  the  action  did  lie;  for  it  may  be,  the  de- 
fendant did  know  no  otherwise  but  that  they  were  his  own  goods, 
then  the  action  would  lie. 

Anderson,  contra,  for  it  shall  be  intended,  that  he  that  sold  had 
knowledge  whether  they  were  his  goods  or  not.  42  Ass.  8.  And  it 
was  afterwards  adjudged  against  the  plaintiff. 


HARDING  V.  FREEMAK 
Upper  Bench,  1651. 
{Style,  310.] 

Harding  brought  an  action  upon  the  Case  against  Freeman,  and 
declared  against  him.  that  the  Defendant  did  sell  unto  him  a  Gelding, 
and  upon  the  sale  did  falsely  affirm  unto  him,  that  the  Gelding  was 
his  own  Gelding,  and  that  he  bred  him  of  a  Colt,  whereas  he  bred  him 
not  of  a  Colt,  neither  was  it  his  own  Gelding,  but  another  man's  Geld- 
ing, and  so  concludes  to  his  damage.  Upon  not  guilty  pleaded,  and  a 
Verdict  found  for  the  Plaintiff,  the  Defendant  moved  in  Arrest  of 
Judgment,  1.  That  in  this  sale  of  the  Gelding,  the  Defendant  had 
made  no  warranty  of  him ;  and  therefore  though  the  sale  were  not 
good,  yet  the  Action  lies  not.  21y.  The  Plaintiff  doth  not  declare 
that  the  Defendant  knowing  the  Gelding  to  bo  another  man's,  did 
affirm  him  to  be  his  own,  and  so  here  doth  not  appear  to  be  any  fraud 
in  the  sale.  Twisden  answered,  that  the  words  are  sufficient  to  imply 
a  deceit,  though  they  express  not,  that  he  knowing  it  to  be  another 
man's  horse  did  make  the  affirmation,  for  the  words  are  that  he  did  it 
falso  et  fraudulenter,  and  affirmed  the  Horse  to  be  his  own.  But  the 
Court  stayed  the  Judgment,  for  they  said,  that  here  is  no  direct 
affirmation,  l)ut  only  an  intendment  that  scienter  fecit.  Yet  after- 
wards iudgment  was  given  for  the  Plaintiff. 


CROSSE  V.  GARDNER. 
King's  Bench,  1689. 
[Comherbach,  l-i-2.'] 

Case.  The  Plaintiff  declares,  that  the  Defendant  having  discourse 
of  two  Oxen  did  atfirm  them  to  his  own  ]>roper  Oxen,  to  which  the 
Plaintiff  sidem  adhihen^,  gave  him  so  much  for  them,  ubi  rcvera  they 
were  the  Oxen  of  J.  S.  »S:c. 

'S.  C.  Carth,  90;  3  Mod.  2(51  ;  1  Show.  68;  Holt.  5.— Ed. 


463  MORLEY    V.    ATTEXBOROUGH.  [BOOK   IL 

It  was  agreed  by  the  Attorney-General  last  Trinity-Term,  that 
the  Action  did  not  lie  on  a  bare  Atlirmation  without  a  Warranty. 
2  Cro.  4 ;  11  Ed.  4,  G ;  1  Roll.  9(5,  97 ;  1  Roll.  Rep.  v^7G  in  Point ;  and  he 
said  further,  that  it  was  not  lain  to  be  deceptive. 

Gold,  contra.  As  to  the  Case  in  2  Cro.  4.  The  Reason  of  that  is, 
because  'tis  in  his  Trade,  as  to  11  Ed.  4,  6,  that  is  on  an  AllirmancQ, 
that  such  a  Thing  was  of  such  weight  or  Measure,  and  it  was  the 
Plaintiff's  Fault  that  he  did  not  Weigh  or  Measure  it ;  but  in  our 
Case  it  is  an  offer  to  sell,  and  is  a  Possession,  and  without  Doubt,  if 
it  had  been  laid  Sciens,  it  had  been  actionable,  but  as  it  is  here,  it  is 
Damnum  tf-  deceptio.  Ass.  pi.  8;  2  Cro.  197,  the  Difference,  where 
the  Party  hath  the  Goods  in  his  Possession,  which  he  atlirms  to  be  his 
own. 

That  the  Affirmance  inducetli  tlie  Buying,  and  the  Eviction  by  the 
rightful  Owner  is  the  Damage.  2  Cro.  474,  196,  197;  Mo.  126.  1 
Roll.  96.  ^ 

Attorney-General.  Admitted,  if  an  Atlirmation  with  an  Intent  to 
deceive  had  been  laid,  the  Action  liad  lain,  but  it  is  not  so  here.  2  Cro. 
474. 

Holt,  Ch.  J.  Atnrniation  to  suj)j)ort  the  Action  ought  to  lie  at 
the  Time  of  the  .Sale,  and  there  it  is  an  Inducement  to  buy,  and  the 
Difference  taken  is  good,  where  the  Plaintiif  may  as  well  satisfy 
himself  as  the  Defendant ;  and  where  it  lieth  only  in  the  Conusance 
of  the  Defendant,  who  affirms.  Yelv.  20.  Sciens  is  supply 'd  by  the 
Verdict. 

DoLBEX,  inclined,  that  the  Action  lay,  and  tliat  there  was  such  a 
Case  in  this  Court  .'^even  Years  ago. 

Afterwards,  in  this  Term  the  Case  was  argued  again,  and  per  Cur', 
the  Action  well  lieth.  ^^  Cro  44;  Jones,  IHC;  1  Roll.  91.  Scietis 
omitted,  and  yet  the  Action  lies.     1  Sid.  146. 

Holt.    That  Credit  given  on  the  Affirmation  makes  the  Action  lie. 

Eyres  agreed  on  the  Case.     Jones,  196. 

Judgment  pro  Quer'. 


MoiJLKV  r.  A'i"i'i:N'p.oi:()r(;ir. 

E-XCIIKI^IKR,   1S49. 
[3  Errhrtiurr  H'-ports.  500.] 

.\^M  Mi'siT.  The  first  eount  of  the  declaration  stated,  that  in  fon- 
Bideralion  that  the  pbiintifT  woubl  l»uy  of  tile  defendant  a  harp  for 
£15  t'jfl.,  the  defendant  j»romi<ed  that  he  had  lawful  right  and  titl" 
to  sell  it  to  the  plaintiff,  that  the  plaintiff  bought  the  harp  and  paid 
for  the  name.  Breach,  that  the  defendant  had  not  law/ul  right  or 
title  to  xell  the  harp.  There  was  also  a  rount  for  money  had  and  re- 
ceived to  the  jjlaintiff'.s  use.     Plea,  non  assumpsit. 


CHAP.    II.]  MORLEY    V.    ATTENBOROUGH.  463 

At  the  trial,  before  Platt,  B.,  at  the  Middlesex  sittings  after  Easter 
term,  1847,  the  following  facts  appeared: — In  the  year  1839,  a  person 
of  the  name  of  Foley,  having  hired  a  harp  of  Messrs.  Chappell,  music- 
sellers,  pledged  it  with  the  defendant,  a  pawnbroker,  for  £15  15s.,  on 
the  terms  that,  if  the  sura  advanced  were  not  repaid  within  six  months, 
the  defendant  should  be  at  liberty  to  sell  it.  The  defendant  had  no 
knowledge  that  the  harp  did  not  belong  to  the  party  pledging  it.  The 
harp  not  having  been  redeemed  at  the  stipulated  time,  the  defendant, 
in  the  year  1845,  sent  it  with  other  articles  to  be  sold  by  public  auction. 
The  auctioneers  were  accustomed  to  have  quarterly  sales  of  unre- 
deemed pledges,  of  which  the  present  sale  w'as  one,  and  on  those  oc- 
casions were  in  the  habit  of  putting  other  lots  into  the  sale.  The  sale 
extended  o^er  several  days,  and  a  general  catalogue,  comprising  the 
articles  to  be  sold  on  each  day,  stated  on  the  titlepage,  that  the  goods 
for  sale  consisted  of  "a  collection  of  forfeited  property,  reserved, 
agreeably  to  Act  of  Parliament,  for  quarterly  sale  (see  39  &  40  Geo.  3, 
c.  99,  §  18),  pledged  prior  to  May,  1844,"  with  certain  pawnbrokers 
(naming  them,  and  amongst  others  the  defendant),  and  that  the  lots 
without  numbers  were  "other  effects."  Catalogues  were  also  printed, 
applicable  to  each  day's  sale.  The  harp,  which  was  numbered  in  the 
catalogue,  was  knocked  down  to  the  plaintiff  for  £15  15s.,  but  no 
warranty  of  title  w^as  given.  The  Messrs.  Chappell,  having  afterwards 
discovered  tliat  the  harp  was  in  ihe  plaintiff's'possession,  commenced 
an  action  against  him  for  its  recover}',  whereupon  the  plaintiff  gave  up 
the  harp  to  them,  and  paid  the  costs,  for  which,  together  with  the  price 
of  the  harp,  the  present  action  was  bfbught.  iOn  behalf  of  the  defend- 
ant it  was  objected,  that  there  was  no  warranty  of  title,  either  express 
or  implied,  and  that  the  plaintiff  ought  to  be  nonsuited.  The  learned 
judge  directed  a  verdict  for  the  plaintiff,  reserving  leave  for  the  de- 
fendant to  move  to  enter  a  nonsuit.^ 

The  judgment  of  the  Court  was  now  delivered  by 

Parke,  B.  .  This  case  was  argued  some  time  ago  before  my  Lord 
Chief  Baron,  ray  Brothers  Rolfe,  Platt,  and  myself,  and  stood  over 
for  our  consideration.  The  plaintiff  brought  an  action  of  assumpsit, 
stating,  that  in  consideration  that  the  plaintiff  would  buy  a  harp  for 
a  certain  sum,  the  defendant  })romised  that  he,  the  defendant,  had 
lawful  right  to  sell  it,  and  the  breach  assigned  was  that  he  had  not. 

It  appeared  on  the  trial  before  my  Brother  Platt^  that  the  defend- 
ant, who  was  a  pawnbroker,  had  the  harp  pledged  with  him  in  the 
way  of  his  business,  and,  the  time  having  elapsed  for  its  redemption, 
and  the  pledge  being  unredeemed,  offered  it  for  sale  through  certain 
auctioneers,  who  sold  it  to  the  plaintiff.  It  turned  out  that  the  harp 
had  been  pledged  to  the  defendant  by  a  person  who  had  no  title  to 
it,  and  the  real  owner  obliged  the  plaintiff  to  give  it  up,  after  it  had 

'The  learned  arguments  of  counsel  are  omitted. — Ed. 


464  MOIILKY    V.    ATTKNHOHOL'UII.  [bOOK    II. 

been  delivered  to  him  hy  tlu'  defeiulam.  But,  ol"  the  want  of  title  of 
the  pawner  to  it  the  defendant  was  ignorant,  and  there  was  no  ex- 
press warranty.  My  Brother  Plait  directed  a  verdict  for  the  plain- 
tiff, reserving  leave  to  move  to  enter  a  nonsnit. 

On  showing  cause,  the  ease  was  fully  argued,  and  every  authority 
cited  and  commented  upon  on  hoth  sides,  bearing  on  the  question, 
whether  there  is  an  implied  warranty  of  title  in  the  contract  of  sale 
of  an  article,  or  under  what  circumstances  there  is  a  liability  on  the 
part  of  the  vendor  to  make  good  a  loss  by  defect  of  title. 

It  is  very  remarkable  that  there  should  in'  any  doubt,  as  that, 
certainly,  is  a  question  so  likely  to  be  of  common  occurrence,  especially 
in  this  commercial  country.  Such  a  i)oint,  one  would  have  thought, 
would  not  have  admitted  of  any  doubt.  The  bargain  and  sale  of  a 
specific  chattel,  l)y  our  law  (which  differs  in  that  respect  from  the 
civil  law),  undoubtedly  transfers  all  the  property  the  vendor  has, 
where  nothing  further  remains  to  be  done  according  to  the  intent  of 
the  parties  to  pass  it.  But  it  is  made  a  question,  whether  there  is  an- 
nexed by  law  to  such  a  contract,  which  operates  as  a  conveyance  of 
the  property,  an  implied  agreement  on  the  part  of  the  vendor,  that  he 
has  the  ability  to  convey.  With  respect  to  executory  contracts  of 
purchase  and  sale,  where  the  subject  is  unascertained,  and  is  after- 
wards to  be  conveyed,  it  would  probably  be  implied  that  both  parties 
meant  that  a  good  title  to  that  subject  should  be  transferred,  in  the 
same  manner  as  it  would  be  imj)lied  under  similar  circumstances,  that 
a  merchantable  article  was  to  be  supj)lied.  Tidess  goods,  which  the 
party  could  enjoy  as  his  own,  and  make  full  use  of,  were  delivered, 
the  contract  would  not  be  performed.  The  jnirchaser  could  not  be 
bound  to  accept  if  he  discovered  the  defect  of  title  before  delivery, 
and  if  he  did,  and  the  goods  were  recovered  froiu  him.  he  would  not 
be  bound  to  pay,  or,  having  paid,  he  would  l»e  entitled  to  recover  back 
the  price,  as  on  a  consideration  which  had  failed.  But  when  there  is  a 
bargain  and  sale  of  a  specific  ascertained  chattel,  which  operates  to 
transmit  the  {)roj)erty,  and  nothing  is  said  about  title,  what  is  the 
legal  effect  of  that  contract?  Does  the  contract  necessarilv  imjwrt, 
unless  the  contrary  be  e.\j)ressed,  that  the  vendor  has  a  good  title?  or 
has  it  merely  the  effect  of  transferring  such  title  as  the  vemlor  has? 
According  to  the  Roman  law  (  Vide  Domat,  Book  1,  tit.  "i,  ^  2.  art.  .'i), 
and  in  France  (Code  Civil,  c.  4,  i;  1.  art.  KHi.l).  and  Scotland,  and 
partially  in  America  (  1  .lohns.  j{ep.  'i",  \ ;  jiroom's  Maxims.  (!v'H, 
where  this  subject  is  well  discussed),  there  is  always  an  implied  con- 
tract that  the  vendor  has  the  right  to  dispose  f»f  the  subject  which  he 
scll.s  (Bell  f»n  Sale,  94);  but  the  result  of  the  older  authorities  is, 
that  there  is  by  the  law  of  I-'ngland  no  warranty  of  title  in  the  actual 
contract  of  sale,  any  more  than  there  is  of  (piality.  The  rule  of  nivi'dt 
emptor  applies  tf)  both;  but  if  the  vendor  knew  that  he  had  no  title, 
and  concealed  that  fact,  he  was  always  held  responsible  to  the  pur- 


CHAP.  II.]  .mokli:y  v.  attexborough.  466 

chaser  as  for  a  fraud,  in  the  same  way  that  he  is  if  he  knew  of  the 
defective  quality.  This  rule  will  be  found  in  Co.  Litt.  102a;  3  Rep. 
22a;  Noy,  Max.  42;  Fitz.  Nat.  Brev.  94c,  in  Springwell  v.  Allen, 
Aleyn,  91,  cited  by  Littleuale,  J.,  in  Early  v.  Garrett,  9  B.  &  C.  932, 
and  in  Williamson  v.  Allison,  2  East,  449,  referred  to  in  the  argument. 
The  same  principle  applies  to  transfer  by  deed.  Lord  Hale  says, 
"Though  the  words  'assign,  set  over,  and  transfer,'  do  not  amount 
to  a  covenant  against  an  eigne  title,  yet,  as  against  the  covenantor 
himself,  it  will  amount  to  a  covenant  against  all  claiming  under  him." 
(Deering  v.  Farrington,  3  Keb.  304,  which  was  an  assignment  of  a 
chose  in  action.) 

It  may  be,  that  as  in  the  earlier  times  the  chief  transactions  of 
purchase  and  sale  were  in  markets  and  fairs,  where  the  bona  fide  pur- 
chaser without  notice  obtained  a  good  title  as  against  all  except  the 
Crown  (and  afterwards  a  prosecutor,  to  whom  restitution  is  ordered 
by  the  21  Hen.  8,  c.  11),  the  common  law  did  not  annex  a  warranty 
to  any  contract  of  sale.  Be  that  as  it  may,  the  older  authorities  are 
strong  to  show  that  there  is  no  such  warranty  implied  by  law  from  the 
mere  sale.  In  recent  times  a  different  notion  appears  to  have  been 
gaining  ground  (see  note  of  the  learned  editor  to  3  Eep.  22a)  ;  and 
Mr.  Justice  Blackstone  says,  "In  contracts  for  sale  it  is  constantly 
understood  that  the  seller  undertakes  that  the  commodity  he  sells  is 
his  own;"  and  Mr.  Wooddeson,  in  his  Lectures  (Vol.  2,  p.  415),  goes 
so  far  as  to  assert  that  the  rule  of  caveat  emptor  is  exploded  alto- 
gether, which  no  authority  warrants. 

At  all  times,  however,  the  vendor  was  liable  if  there  was  a  warranty 
in  fact;  and  at  an  early  period,  the  affirming  those  goods  to  be  his  own 
by  a  vendor  in  possession,  appears  to  have  been  deemed  equivalent 
to  a  warranty.  Lord  Holt,  in  ]\Iedina  v.  Stoughton,  1  Salk.  210; 
Ld.  Raym.  593,  says,  that  "where  one  in  possession  of  a  personal 
chattel  sells  it,  the  bare  affirming  it  to  be  his  own  amounts  to  a  war- 
ranty;"  and  Mr.  Justice  Buller,  in  Pasley  v.  Freeman,  3  T.  R.  57, 
disclaims  any  distinction  between  the  affect  of  an  affirmation,  when 
Iho  vendor  is  in  possession  or  not,  treating  it  as  equivalent  to  a  war- 
ranty ill  both  cases. 

Some  of  the  text  writers  drop  the  expression  of  "warranty"  or  "af- 
firmation," and  lay  down  in  general  terms,  that  if  a  man  sells  goods  as 
his  oivn,  and  the  title  is  deficient,  he  is  liable  to  make  good  the  loss 
(2  Black.  Com.  451)  ;  the  commentator  cites,  for  that  position,  Cro. 
Jas.  474,  and  1  Roll.  Al)r.  70.  in  l)oth  which  cases  there  was  an 
allegation  that  the  vendor  affirmed  that  he  had  a  title,  and  therefore 
it  would  seem  that  the  learned  author  treated  the  expression,  "selling 
as  his  own,"  as  equivalent  to  an  affirmation  or  warranty.  So  Chan- 
cellor Kent,  in  2  Com.  478,  says,  "that  in  every  sale  of  a  chattel,  if  the 
possession  be  in  another,  and  there  be  no  covenant  or  warranty  of 
title,  the  rule  of  cuveai  emptor  applies,  and  the  party  buys  at  his 


466  MORLEY    V.    ATTEXBOROUGII.  [bOOK   II. 

peril;  but  if  the  seller  has  possession  of  the  article,  and  he  sells  it  at 
his  own,  and  for  a  fair  price,  he  is  understood  to  warrant  the  title.'^ 
From  the  authorities  in  our  law,  to  which  may  be  added  the  opinion 
of  the  late  Ivord  Cliief  Justice  Tindale,  in  Ormrod  v.  Huth,  14  M.  & 
W.  6(34,  it  would  seem  that  there  is  no  applied  warranty  of  title  on 
the  sale  of  goods,  and  that  if  there  be  no  fraud,  a  vendor  is  not 
liable  for  a  bad  title,  unless  there  is  an  express  warranty,  or  an  equiva- 
lent to  it,  by  declarations  or  conduct;  and  the  question  in  each  case, 
where  there  is  no  warranty  in  exj)ress  terms,  will  be,  wiiether  there 
are  s^ph  circumstances  as  to  be  equivalent  to  such  a  warranty.  Usage 
of  trade,  if  proved  as  a  matter  of  fact,  would,  of  course,  be  sufficient 
to  raise  an  inference  of  such  an  engagement ;  and  without  proof  of 
such  usage,  the  very  nature  of  the  trade  may  be  enough  to  lead  to  the 
conclusion,  that  the  person  carrying  it  on  must  be  understood  to  en- 
gage that  the  purchaser  shall  enjoy  that  which  he  buys,  as  against 
all  persons.  It  is,  perhaps,  with  reference  to  such  sales,  or  to 
executory  contracts,  that  Blackstone  makes  the  statement  above 
referred  to. 

Similar  questions  occur  in  cases  as  to  the  quality  of  goods,  in  which 
it  is  clear  there  is,  by  law,  no  implied  warranty;  yet,  if  goods  are 
ordered  of  a  tradesman,  in  the  way  of  his  trade,  for  a  particular 
purpose,  he  may  be  considered  as  engaging  that  the  goods  supplied  are 
reasonably  fit  for  that  purpose.  We  do  not  suppose  that  there 
would  be  any  doubt,  if  the  articles  are  bought  in  a  shop  professedly 
carried  on  for  the  sale  of  goods,  that  the  shopkeejjer  must  be  con- 
sidered as  warranting  that  those  who  purchase  will  have  a  good  title 
to  keep  the  goods  purchased.  In  such  a  case  the  vendor  sells  "as  his 
own,"  and  that  is  what  is  equivalent  to  a  warranty  of  title.  But  in  the 
ease  now  under  consideration,  the  defendant  can  be  made  responsible 
only  as  on  a  sale  of  a  forfeited  pledge  eo  nomine.  Though  the  harp 
may  not  have  been  distinctly  stated  in  the  auctioneer's  catalogue  to 
b<'  a  forfeited  pledge,  yet  the  auctioneer  had  no  authority  from  the 
defendant  to  sell  it  except  as  such.  The  defendant,  therefore,  cannot 
be  taken  to  have  sold  it  with  a  more  extensive  liability  than  such  a 
gale  would  have  imposed  ui)on  him;  and  the  (piestion  is.  whether,  on 
such  a  sale,  accomj)anied  with  possession,  there  is  any  assertion  of  an 
absolute  title  to  sell,  or  only  an  assertion  that  the  article  has  been 
pledged  with  him,  and  tlio  time  allowed  for  redemption  has 
passed.  On  this  (piestion  we  are  without  any  light  from  decided 
cases. 

In  our  judgment,  it  appears  unreasonable  to  consider  the  pawn- 
broker, from  the  nature  of  his  occupation,  a."*  undertaking  anything 
more  than  that  the  subject  of  sale  is  a  pledge  and  irredeemable,  and 
that  he  is  not  cognizant  of  any  defect  of  title  to  it.  By  the  statute 
law  (sec  1  .Tiic.  1,  c.  2\),  hr  gains  no  better  title  by  a  jjledge  than 
the  pawner  had ;  and  as  the  rule  of  the  commnn  l.iw  i-;.  that  there  is  no 


CHAP.    II.]  EICHHOLZ    V.   BANNISTER.  467 

implied  warranty  from  tlio  mere  contract  of  sale  itself,  we  think,  that 
where  it  is  to  be  implied  from  the  nature  of  the  trade  carried  on, 
the  mode  of  carrying  on  the  trade  should  be  such  as  clearly  to  raise 
that  inference.  In  this  case  we  think  it  does  not.  The  vendor 
must  be  considered  as  selling  merely  the  right  to  the  pledge 
which  he  himself  had;  and  therefore  we  think  the  rule  must  be 
absolute. 

Since  the  argument,  we  find  that  there  was  a  count  for  money  had 
and  received,  as  well  as  the  count  on  the  warranty,  in  the  declaration. 
But  the  attention  of  the  judge  at  the  trial  was  not  drawn  to  this 
count,  nor  was  it  noticed  on  the  argument  in  court. 

It  may  be,  that  though  there  is  no  implied  warranty  of  title,  so  that 
the  vendor  would  not  be  liable  for  a  breach  of  it  to  unliquidate  dam- 
ages, yet  the  purchaser  may  recover  back  the  purchase-money,  as  on 
a  consideration  that  failed,  if  it  could  l)e  shown  that  it  was  the  under- 
standing of  both  parties  that  the  bargain  should  be  put  an  end  to  if 
the  purchaser  should  not  have  a  good  title.  But  if  there  is  no  implied 
warranty  of  title,  some  circumstance  must  be  shown  to  enable  the 
plaintiff  to  recover  for  money  had  and  received.  This  case  was  not 
made  at  the  trial,  and  the  only  question  is,  whether  there  is  an  implied 

^'  Rule  absolute.^ 


EICHHOLZ  V.  BAXXISTER. 

Common  Pleas,  1864. 

[17  Common  Bench  Reports,  New  Series,  708.] 

This  was  an  action  for  money  payable  by  the  defendant  to  the 
plaintiff  for  money  received  by  the  defendant  for  the  use  of  the  plain- 
tiff, for  money  paid  by  the  plaintiff  for  the  defendant  at  his  request, 
and  for  money  found  to  be  due  from  the  defendant  to  the  plaintiff' 
on  accounts  stated;  Claim,  £19.  Plea,  never  indebted,  whereupon 
issue  was  joined. 

The  cause  was  tried  in  the  court  of  record  for  the  trial  of  civil 
actions  within  tlie  city  of  ^lanchester,  l)efore  the  deputy  recorder, 
when  the  facts  which  appeared  in  evidence  were  as  follows: — The 
plaintiff  was  a  commission-agent  at  Manchester.  The  defendant  was  a 
job-warehouseman  in  the  same  place.  On  the  18th  of  April  last,  the 
plaintiff  went  to  the  defendant's  warehouse,  and  there  saw.  among 
other  goods  which  the  defendant  had  just  purchased.  17  pieces  of 
prints,  which  he  offered  to  buy  of  him  at  ojd.  a  yard.  After  some 
discussion,  the  defendant  agreed  to  sell  them,  and  gave  the  plaintiff 

»See  Chapnirtii  r.  SppUor   (I'^.^O)   14  Q.  B.  G21.— Ed. 


468  EICHIIOLZ    V.    BANNISTER.  [bOOK    II. 

an  invoice  in  the  following  form,  the  wliole  of  which  was  printed, 
with  exception  of  the  parts  in  italics: — 

21   CiioRLTOx  Street,  Portland  Street, 
Manchester.    April  18th,  18G4. 
Mr.  Eichholz 

Bought  of  \\.  Bannister,  .Iol)-warehoviseman 
Prints,  F'ents,  Grey  Fustians,  &c.    Job  and  perfect  Yarns  in  Hanks, 
Cops,  and  Bundles. 

17  pieces  of  prints,  52  yds.  at  5^d.  £19       0       0 

IJ  per  cent  for  cash  6       0 


£18     14       0 


The  plaintiff  paid  for  the  goods  before  he  left  the  warehouse,  and 
the  defendant  sent  them  b}'  a  porter  to  the  plaintiff's  place  of  business. 
The  plaintiff  sold  the  lot  a  few  days  afterwards  for  £11)  15s.  net.  The 
goods  were  sub.sequently  returned  to  the  j)laintitT,  they  having  been 
recognized  as  goods  which  had  been  stolen  from  the  premises  of  one 
Krauss.  The  goods  were  taken  possession  of  by  the  police,  and  the 
thief,  one  Aspinwall,  was  tried  at  the  general  quarter  sessions  of  the 
peace  lioldcn  in  and  for  the  City  of  Manchester  on  the  9th  of  May  last, 
and  convicted,  and  sentenced  to  penal  servitude  for  four  years. 

On  the  part  of  the  defendant,  it  was  objected  that  there  was  no  case 
to  go  to  the  jury,  inasmuch  as  there  is  no  implied  warranty  of  title  on 
the  .sale  of  goods. 

For  the  phiintitf  it  was  insisted  tliat  he  was  entitled  to  recover,  the 
money  having  been  paid  upon  a  consideration  which  had  wholly  failed. 

The  learned  judge  directed  a  verdict  to  be  entered  for  the  plaintiff 
for  the  amount  claimed,  reserving  leave  to  the  defendant  to  move  to  set 
aside  the  verdict  and  enter  a  nonsuit  or  a  verdict  for  th(>  defendant, 
if  the  court  .should  be  of  opinion  that  the  ))laintiir  was  not  entitled  to 
recover.' 

Erle,  C.  J.  I  am  of  opinion  tiiat  this  rule  should  be  di.scharged. 
The  [)biintiir  l)rings  his  action  to  recover  back  money  which  he  j)aid 
for  goods  l»f)ught  by  him  in  the  shop  of  th(>  defendant,  which  were 
afterwards  lawfully  cbumc<l  from  him  by  a  third  person,  the  true 
owner,  from  whom  they  had  been  stob-n.  The  plaintiff  now  claims 
to  recover  back  the  money  as  having  been  paid  by  him  ujion  a  con- 
sideration which  luis  failed.  The  jury  at  the  trial  found  a  verdict  for 
the  plaintiff,  under  the  direction  of  the  learned  judge  who  presided; 
and  a  rule  ha.s  been  obtained  on  behalf  of  the  defendant  to  set  aside 
that  verdict  and  to  enter  a  nonsuit,  on  the  ground  that  it  is  part  of 
the  common  law  of   Kngland   that   the  vendor  of  goods  l)y  the  mere 

'In  thf  nrtiiiiH-nlH  of  ((iiinHcl  in  tltin  ciim-.  lunl  in  Mnrlcy  i'.  .\tti'nl>iir(>iif;li, 
ante,  will  \w  fouml  collcftrd  tho  jfri-ator  nunilMT  <pf  (lie  inipDrtiinl  cinlirr  Knj,'- 
linh  case*  on  tho  Hubjwt. — Kn. 


CHAP.    11.]  KlCmiOI./    /•.    I'.AXXISTKK.  4G9 

contract  of  sale  does  not  warrant  his  title  to  the  ^oods  he  sells,  that 
the  buyer  takes  them  at  his  peril,  and  that  the  rule  caveat  emptor 
applies.  The  case  has  hccn  remarkably  well  argued  on  both  sides;  and 
the  court  ai'e  much  indebted  to  the  learned  counsel  for  the  able  assist- 
ance they  have  rendered  to  them.  The  result  1  have  arrived  at,  is, 
that  the  plaintiff  is  entitled  to  retain  his  verdict.  I  consider  it  to  be 
clear  upon  the  ancient  authorities,  that,  if  the  vendor  of  a  chattel 
by  word  or  conduct  gives  tlie  purchaser  to  understand  that  he  is  the 
owner,  that  tacit  representation  forms  part  of  the  contract,  and  that, 
if  he  is  not  the  owner,  his  contract  is  broken.  So  is  the  law  laid  down 
in  the  very  clal)orate  judgment  of  Parke,  B.,  in  Morley  v.  Atten- 
borough,  3  Ex.  500,  513,  where  that  learned  judge  puts  the  ease  upon 
which  I  ground  my  judgment.  A  difference  is  taken  in  some  of  the 
cases  between  a  warranty  and  a  condition.  See  Bannerman  v.  White, 
10  C.  B.  N.  S.  844.  But  that  is  foreign  to  the  present  inquiry.  In 
Morley  v.  Attenborough,  3  Ex.  513,  Parke,  B.,  says:  "We  do  not 
suppose  that  there  would  be  any  doubt,  if  the  articles  are  bought  in  a 
shop  professedly  carried  on  for  the  sale  of  goods,  that  the  shopkeeper 
must  be  considered  as  warranting  that  those  who  purchase  will  have 
a  good  title  to  keep  the  goods  purchased.  In  such  a  case  the  vendor 
sells  'as  his  own,'  and  that  is  what  is  equivalent  to  a  warranty  of  title." 
No  doubt,  if  a  shopkeeper,  in  words  or  by  his  conduct,  affirms  at  the 
time  of  the  sale  that  he  is  the  o-\\Tier  of  the  goods,  such  affirmation 
becomes  part  of  the  contract,  and,  if  it  turns  out  that  he  is  not  the 
owner,  so  that  the  goods  are  lost  to  the  buyer,  the  price  which  he  has 
received  may  be  recovered  hack.  I  ventured  to  throw  out  some  remarks 
in  the  course  of  tlio  argument  upon  the  doctrine  relied  on  by  Mr. 
Ilolker,  which  he  answered  by  assertion  after  assertion,  coming  no 
doubt  from  judges  of  great  authority  in  the  law,  to  the  effect  that  upon 
a  sale  of  goods  there  is  no  implied  warranty  of  title.  The  passage 
cited  from  Xoy  certainly  puts  the  proposition  in  a  manner  that  must 
shock  the  understanding  of  any  ordinary  person.  But  I  take  the 
principle  intended  to  be  illustrated  to  be  this, — I  am  in  possession  of  a 
horse  or  other  chattel ;  I  neither  affirm  nor  deny  that  I  am  the  o^\'ne^ ; 
if  you  choose  to  take  it  as  it  is,  without  more,  caveat  emptor:  you 
have  no  remedy,  though  it  should  turn  out  that  T  have  no  title.  Where 
that  is  the  whole  of  the  transaction,  it  may  l)e  that  there  is  no  warranty 
of  title.  Such  seems  to  be  the  princi]ile  on  which  Morley  v.  Atten- 
borough was  decided.  The  pawnbroker,  when  he  sells  an  unredeemed 
pledge,  virtually  says, — I  have  under  tlie  provisions  of  the  statute 
(39  &  40  G.  3,  c.  90,  §  17)  a  right  to  sell.  If  you  choose  to  buy  the 
article,  it  is  at  your  own  peril.  So,  in  the  case  of  the  sale  by  the 
sheriff  of  goods  seized  under  a  /;'.  fa.  Chajiman  v.  Speller,  14  Q.  B. 
621.  The  fact  of  the  sale  taking  place  under  such  circumstances  is 
notice  to  buyers  that  the  sheriff  lias  no  knowledge  of  tlie  title  to  the 
goods;  and  the  buyers  conseiiuently  Imy  at  their  own  peril.     Many 


470  EICHIIOLZ    V.    BANNISTER.  [BOOK    II. 

contracts  of  sale  tacitly  express  tlic  same  sort  of  disclaimer  of  warranty. 
In  this  sense  it  is,  that  1  inulerstauJ  the  decision  of  this  court  in  Hall 
V.  Conder,  2  C.  B.  X.  8.  22.  There,  the  plaintiff  mtivly  professed 
to  S4'll  the  patent-right  such  as  he-  had  it,  and  tlie  court  lu'ld  that  the 
contract  might  still  be  enforced,  though  the  patent  was  ultimately 
defeated  on  the  ground  of  want  of  novelty.  The  thing  which  was  the 
subject  of  the  contract  there,  was  not  matter,  it  was  ratlier  in  the 
nature  of  mind.  These  are  some  of  the  cases  where  the  conduct  of  the 
seller  expresses  at  the  time  of  the  contract  that  he  merely  contracts 
to  sell  such  a  title  as  he  himself  has  in  the  thing.  But,  in  almost  all 
the  transactions  of  sale  in  common  life,  the  seller,  l)y  the  very  act  of 
selling,  holds  out  to  the  buyer  that  he  is  the  owner  of  the  article  he 
offers  for  sale.  The  sale  of  a  chattel  is  the  strongest  act  of  dominion 
that  is  incidental  to  ownership.  A  purchaser  under  ordinary  circum- 
stances would  naturally  be  led  to  the  conclusion,  that,  by  offering  an 
article  for  .<ale,  the  .seller  afhrms  that  he  has  title  to  sell,  and  that  the 
buyer  may  enjoy  that  for  which  he  parts  with  his  money.*  Such  a 
case  falls  within  the  doctrine  stated  by  Blackstone,  and  is  so  recog- 
nized by  LiTTLEDALE,  J.,  in  Early  v.  Garrett.  0  B.  &  C.  028;  4  M.  &  R. 
f)87,  and  by  Pakke,  B.,  in  Morley  v.  Attenl)ornugh,  3  Ex.  513.  I 
think  justice  and  .sound  sense  require  us  to  limit  the  doctrine  so  often 
repeated,  that  there  is  no  implied  warranty  of  title  on  the  sale  of  a 
chattel.  I  cannot  but  take  notice,  that,  after  all  the  research  of  two 
very  learned  counsel,  the  only  seml)lance  of  authority  for  this  doctrine 
from  the  time  of  Xoy  and  Lord  Coke  consists  of  mere  dicta.  These 
dicta,  it  is  true,  appear  to  have  been  adopted  by  several  learned  judges, 
amongst  others  by  my  excellent  Brother  William.s,  who.se  words  are 
almost  obligatory  on  me;  but  I  cannot  find  a  single  instance  in  which 
it  has  been  more  than  a  repetition  of  barren  sounds,  never  resulting  in 
the  fruit  of  a  judgment.  This  very  much  tends  to  .show  the  wisdom 
of  Lord  Campbell's  remark  in  Sims  v.  Marryat,  17  Q.  B.  291,  that 
the  rule  is  beset  with  so  many  exceptions  that  they  well  nigh  eat  it  up. 
It  is  to  be  hoj)ed  that  the  notion  which  has  so  long  prevailed  will  now 
pass  away,  and  that  no  further  impediment  will  be  placed  in  the 
way  of  a  buyer  recovering  back  money  which  he  has  parted  with  upon 
a  consideration  which  has  failetl. 

BvLKs,  .).  I  also  am  of  opinion  that  this  rule  should  be  discharged. 
It  has  been  said  over  and  over  again  that  there  is  no  imj)lied  warranty 
of  title  on  the  mere  .**ale  of  a  chattel.  But  it  is  certainly,  as  my  Lord 
has  olLiMTved,  barren  ground  ;  not  a  single  judgment  has  l)een  given 
upon  it.  In  every  ca.se.  there  has  \)oon,  subject  to  une  single  excep- 
tion, cither  declaration  or  conduct.  Chancellor  Kent,  2  Com.  478, 
sayn:  "In  every  sale  of  a  chattel,  if  the  possession  be  at  the  time  in 

'Thorf  N  no  rlniiht  that  in  fvj-ry  «i»Io  of  n  rlmftol  for  n  Hnnml  price,  there 
in  n  tnrit  unci  im[>li(>(l  warrnnty  tliiit  tin*  vondnr  in  tlio  owner  nn<l  has  n  right 
tn  •..!!••     <^rKNcKK,  C.  J.,  Vil)l>ard  r.  .lohnm.n    '1«_>1>    10  John.n.  77,  79.— Ed. 


CHAP.    II.]  ROSWEL   V.   VAUGHAN.  471 

another,  and  there  he  no  covenant  or  warranty  of  title,  the  rule  of 
caveat  emptor  applies,  and  the  party  huys  at  his  peril;"  for  which  he 
cites  the  dicta  of  Lord  Holt  in  Medina  v.  Stoughton,  1  Salk.  210; 
1  Ld.  Kaym.  523,  and  of  Bullek,  J.,  in  Pasley  v.  Freeman,  3  T.  R. 
57,  58.  "But,"  he  goes  on,  "if  the  seller  has  possession  of  the  article, 
and  he  sells  it  as  his  own,  and  not  as  agent  for  another,  and  for  a  fair 
price,  he  is  understood  to  warrant  the  title."  Thus  the  law  stands 
that,  if  there  be  declaration  or  conduct  or  warranty  whereby  the  buyer 
is  induced  to  believe  that  the  seller  has  title  to  the  goods  he  professes 
to  sell,  an  action  lies  for  a  breach.  There  can  seldom  l)e  a  sale  of  goods 
where  one  of  the.<e  circumstances  is  not  present.  I  think  Lord  Camp- 
bell was  right  when  he  observed  that  the  exceptions  had  well  nigh 
eaten  up  the  rule. 

Keating,  J.  I  am  of  the  same  opinion.  Whether  it  be  an  excep- 
tion to  the  rule  or  a  part  of  the  general  rule,  I  think  we  do  not  contro- 
vert any  decided  case  or  dictum  when  we  assert,  that,  under  circum- 
stances like  those  of  the  present  case,  the  seller  of  goods  warrants  that 
he  has  title.  These  goods  were  liought  in  the  defendant's  shop  in  the 
ordinary  course  of  business.  He  gives  an  invoice  with  them,  which 
represents  that  he  is  selling  them  as  vendor  in  the  ordinary  course.  I 
think  the  case  falls  within  that  put  by  Parke,  B.,  in  ^Morley  v.  Atten- 
borough,  of  a  sale  in  a  shop,  which  he  treats  as  a  circumstance  which 
beyond  all  doubt  gives  rise  to  a  warranty  of  ownership.  I  was  some- 
what pressed  by  !Mr.  Holker's  question  whether  there  is  more  affirm- 
ance of  title  in  the  case  of  a  sale  in  a  shop  than  in  a  sale  elsewhere. 
It  may  be  that  the  distinction  is  very  fine  in  certain  cases.  If  a  man 
professes  to  sell  without  any  qualification  out  of  a  shop,  it  is  not  easy 
to  see  why  that  should  not  have  the  same  operation  as  a  sale  in  the 
shop.  It  is  not  necessary,  however,  to  decide  that  question  now.  Here, 
the  sale  took  place  in  a  public  shop,  in  the  ordinary  way  of  business, 
and  every  circumstance  concurs  to  bring  the  case  within  the  distinc- 
tion put  by  Parke,  B.,  in  ]\Iorley  v.  Attenborough. 

Eide  discharged} 


EOSWEL  V.  VAUGHAX. 

Exchequer,  1607. 

[Crol-e's  James.  19G.] 

Action  on  the  case  in  the  nature  of  deceit.  Whereas  on  the  ninth 
of  June,  35.  Eliz.,  queen  Elizabeth  was  .^eised  in  fee  of  the  advowson 
of  the  vicarage  of  Southf^tnl-e.  whereto  the  tithes  in  Southstolr  apper- 
tained; to  which  vicarage  the  defendant,  on  the  ninth  of  June. 
35  Eliz.  affirmed  that  he  was  lawful  incumbent,  and  had  right  to  the 

'In  Rvnll  !•.  RowIp^   (1740.30)    1  Vo:*.  Sr.  348.  .351.  Lee.  Chief  Justice,  com- 


472  ROSWEL  r.  vaichax.  [book  ii. 

tithes  from  the  death  of  Thomas  Vaughan  \hc  incumbent;  where- 
upon the  phiintifT,  Kith  June,  35  Eliz.  having  communication  with  the 
defenchint  about  his  buying  of  the  defemhint  the  tithes  appertaining 
to  the  said  vicarage,  after  the  death  of  the  said  Thomas  Vaughan 
(who  died  IGth  April,  Mi  Eliz.)  until  Michaelmas  following;  that 
the  defendant,  adtunc  sciens  that  he  had  not  any  right  or  interest  to 
the  tithes,  whereas  he  never  was  instituted  and  inducted,  but  that  they 
apj)ertained  to  Evan  Thomas,  sold  them  to  the  plaintiff  for  thirty 
pounds,  fals  o  et  deceptive :  and  alledg(>th  in  facto,  that  Evan  Thomas 
was  presented,  admitted,  instituted  and  inducted  to  that  vicarage  on 
the  last  day  of  August.  35  Eliz.  and  took  the  tithes,  and  so  the  plaintiff 
lost  them. 

The  defendant  pleads  not  guilty;  and  found  against  him.  And 
it  was  now  moved  in  arrest  of  judgment,  that  the  action  lay  not;  for 
an  action  in  the  nature  of  deceit  lies  not  where  one  sells  a  thing 
which  he  hath  not  any  property  in:  and  although  he  took  upon  him 
in  discourse  that  he  was  an  owner,  and  had  right  to  sell,  unless  he 
warrants  that  the  other  should  enjoy  it  accordingly  (such  warranty 
ought  to  be  at  the  time  of  the  sale),  it  is  not  good :  but  here  is  not  any 
warranty  nor  affirmance  at  the  time  of  the  sale,  that  he  had  any  right 
or  title  to  soil ;  for  his  allinnanee  that  he  was  vicar,  and  had  a  right 
to  sell,  was  upon  the  ninth  of  June,  and  the  sale  was  KJtii  June  after; 
and  in  proof  hereof  he  relied  upon  5.  lien.  7.  jil.  41.;  !>.  Hen.  7  pi. 
21.  and  Chandler  v.  Lopus,  Ante.  4. 

Tanp'ieli),  Chief  Haron ,  and  ALTiiA^r,  were  of  that  o])iiiion.  But 
if  a  man  sell  victuals  which  is  corrupt,  without  warranty,  an  action 
lies,  because  it  is  against  the  commonwealth;  as  i).  lien.  (>.  pi.  53; 
7.  Hen.  4.  pi.  15.  and  11.  Edw.  1.  pi.  (i.  and  although  the  Book  of 
Assi.so,  42.  .\ss.  pi.  S.  was  objected,  where  one  took  goods  from  another 
and  ."old  them,  and  the  owner  retook  them,  that  an  action  upon  the 
case  was  brought  in  nature  of  deceit  for  this  falsity  in  sale,  without 
any  warranty;  Tani-'IKLO  thereto  an.swered,  that  the  said  book  is  not 
adjudged, l)Ut  the  party  admits  it, and  takes  issue;  yet  if  it  were  allowed 
to  be  law,  it  is  because  he  there  had  possession  by  /or/, and  so  had  colour 
in  show  to  be  owner;  and  he  was  deceived  by  buying  of  him  who  had 
only  gained  a  tortious  possession :  and  although  he  had  not  any  right, 
yet  every  one  took  cognizance  of  him  as  owner,  and  be  himself  knew 
that  he  was  not  right  owner;  which  is  the  reason  thai  the  action  is 
maintainable:  but  here  he  had  not  any  pos.<*ossion ;  and  it  is  no  more 
than  if  on<'  should  mA]  lands  wherein  another  is  in  pos.session.  or  a 
horse  whereof  another  is  possessed,  without  covenant  or  warranty  for 
the  enjoyment,  it  is  at  the  jx-ril  nf  liim  who  buys,  and  not  reason  he 

nifntlnK  on  tho  cane  of  li'Apostro  t".  Lr  I'liiiHlrifr  (  ITOH),  wliirli  is  citi-d  in  1  1'. 
Wmn.  .'{|H.  Hiiid:  "My  nrrount  of  tliiit  vix**'  i**  Wiircront  from  tliat  in  1  P.  \\'in'<. 
.  .  .  It  wiiM  licM  liy  tlic  fourt  Ihnt  ofTcrinj;  lo  hcII  urncriilly  wum  snfllciont 
evidence  «»f  offi-rinj,'  to  m-II  hh  owner." — Kd. 


ClIAI'.    1 1.  J  SERJEANT    MAYNAUD's    CASE.  473 

should  have  an  action  l)\'  tlic  law,  wlici-c  lie  did  not  provide  for  him- 
self.    Wherefore  it  was  adjudged  for  the  defendant.^ 


SERJEANT  MAYNx\RD'S  CASE. 

TTioTT  Court  of  Chaxckry,  IGTG. 
I  "^  Free  man,  1.-] 

He  bought  an  Estate  of  one  J.  t>.  and  upon  the  Bargain  it  was 
agreed,  that  a  Recovery  should  be  suffered  within  the  Space  of  three 
Years,  and  he  paying  his  Money  before  the  Recovery  was  suffered, 
took  a  Bond  of  the  Vendor,  that  if  so  be  the  Recovery  was  not  suffered 
in  the  Space  of  tliree  Years,  that  the  Serjeant  reconveying  the  said 
Lands  should  be  repaid  his  ]\Ioney;  the  A^endor  tenders  a  Recovery, 
but  before  it  was  suffered,  a  third  Person  makes  a  Title  to  the  Land, 
and  thereupon  the  Serjeant  exhibited  his  Bill  to  have  his  Money  repaid. 
In  this  Case  it  was  said  Ijy  Mr.  Attorney,  that  if  a  Alan  sell  another's 
Land,  and  covenant  to  discharge  it  of  such  particular  Incumhrances, 
and  before  the  Payment  of  tlie  Aloney  other  Incumbrances  are  dis- 
covered, this  will  prevent  any  Suit  for  the  Money  till  all  the  Incum- 
brances are  discharged. 

It  was  said  likewise  by  Mr.  Kech,  that  if  there  be  no  Covenants 
against  any  Incumbrances,  yet,  if  before  Payment  of  the  Aloney  any 
are  discovered,  the  Party  may  retain  his  Money  till  they  are  cleared; 
quod  fuit  concess.  per  CanccUar'.  But  it  was  said  by  Sir  John  King, 
and  not  denied  per  Cur' ,  that  those  must  be  Incumbrances  made  by 
the  Vendor  himself,  or  otherwise  the  Party  cannot  detain  the  Afoney, 
unless  they  be  covenanted  against.  But  in  thisCase  the  Lord  Chancellor 
[Nottingham]  said  he  could  give  no  Relief;  for  here  the  Serjeant  hath 
parted  with  his  Money,  and  taken  a  Bond  for  Repayment  of  it  if  the 

*"I  lay  out  of  the  question  the  case  in  2  Cro.  196.  and  all  other  cases  which 
relate  to  freehold  interest^i  in  lands ;  for  they  go  on  the  special  reason  that  the 
seller  cannot  have  thoni  without  title,  and  the  buyer  is  at  his  peril  to  see  it," 
per  BiLLER,  J.,  in  Pasley  r.  Freeman  (1780)  3  T.  K.  51,  5f). 

"Note,  that  by  the  civil  law  every  man  is  bound  to  warrant  the  thins  that 
he  selloth  or  conveyeth,  albeit  there  be  no  express  warranty:  but  the  common 
law  bindeth  him  not,  unless  there  be  a  warranty,  eitlicr  in  deed  or  in  law:  for 
caveat  emptor." — Co.  Litt.  102a. 

See  Thomas  &  Fraser's  note  to  Walker's  case  (1/S8fl)  3  Rep.  22a. — En. 

*The  case  is  also  reported  in  3  Swanston  651,  and.  after  a  rear^runient,  i6. 
653.  In  the  first  of  these,  Lord  Nottingha-M  is  quoted  thus:  "Shall  the  loss 
fall  upon  the  defendant,  too,  when  he  hath  sold  it  without  any  covenants  or 
warranties,  and  without  any  other  conditions  than  what  are  performed? 
Caveat  emptor  is  a  very  needless  advice,  if  the  chancery  can  establish  another 
rule  instead  of  it,  by  declaring  that  equity  must  suffer  no  man  to  have  an  ill 
bargain." — Ed. 


474  SERJEANT    MAYNAKD's    CASE.  [BOOK    II. 

Recovery  were  not  sufforoJ  in  thivc  Years  time,  he  reconveving  his 
Estate;  and  here  the  Kecoverv  being  suffered,  he  hath  no  Pretence 
by  his  own  Agreement  to  liave  it  repaid ;  and  this  Court  cannot  help 
him,  unless  it  should  take  upon  itself,  where  any  ^lan  had  a  l>ad 
Bargain,  or  was  cheated  in  his  Title,  to  helj)  him  to  his  Money  again; 
and  here  being  no  manner  of  Fraud  or  Surprise  in  the  Case,  if  he  i)e 
not  helped  by  his  Covenants,  he  will  not  be  helped  in  Equity;  but  for 
the  Matter  of  Reconveving,  he  held  that  if  the  Serjeant. should  recon- 
vey  such  Title  as  he  had  from  them,  be  it  more  or  less,  or  none  at  all, 
yet  being  a  Relative  to  convey,  it  would  have  been  well  enough  ;  but 
here  the  Recovery  being  suffered  according  to  the  Agreement,  though 
nothing  passed  by  it,  he  held  the  Party  had  well  ])erformed  his  Agree- 
ment, and  so  no  Reconveying  nor  Repayment  of  the  Money  to  be 
made.^ 

'Accord,  on  demurrer,  Unston  v.  Pate  (1794)  4  Cruise,  90. — Ed. 

'"It  docs  not  appear  to  be  dearly  settled  how  far,  or  in  what  cases,  this 
court  will  interfere  to  rescind  a  contract  of  sale,  after  it  has  been  consum- 
niated  by  the  execution  of  the  conveyance,  without  any  covenants  of  warranty, 
where  there  is  no  fraud,  but  wlicre  l)<)th  parties  were  under  a  mistake  as  to  the 
title  of  the  vendor.  Hy  the  civil  law,  an  action  of  rcdhil)iti()n,  to  rescind  a  sale 
and  to  compel  the  vendor  to  take  back  the  property  and  restore  the  purchase 
money,  could  be  broupht  by  the  vendee,  wherever  there  was  error  in  the  es- 
sentials of  the  affreement,  altliouph  both  parties  were  ignorant  of  the  defect 
which  rendered  the  pr(i|)crty  sold  unavailable  to  the  purchaser  for  the  ])urpose9 
for  which  it  was  intended.  This  principle  of  the  civil  law  aj)jiears  to  have  been 
follf)wed  in  the  courts  of  some  of  our  sister  States;  :ind  the  case  of  Hiti-hcock 
r.  fliddinj.'-,  4  Trice,  l.'J"),  nujst  have  been  jhrided  by  Chief  IJaron  Ricii.MtDS,  on 
the  same  principle.  I  afrree,  however,  with  the  learned  conunentator  on  Amer- 
ican law,  that  the  weight  of  authority,  both  in  this  State  and  in  England,  is 
against  this  principle,  so  far  as  a  mere  failure  of  title  is  concerned;  and  that 
the  vendee,  who  has  consummated  his  agieement  by  taking  a  c<mveyance  of  the 
property,  must  be  limited  to  the  riglits  wliich  he  has  derived  under  the  cove- 
nants therein,  if  he  has  taken  the  |)retiMnion  to  secure  hiniself  liy  covenants  of 
warranty  as  to  title  (Simpson  r.  Hawkins,  1  Dana's  Kent.  IW't].  .And  wliere 
he  has  neglected  to  take  such  covenants,  and  there  is  no  fraud  or  misre|)resen- 
tation  in  the  case,  he  has  no  remedy  to  recover  back  the  purchase  money  upon 
a  subsequent  failure  of  title."  Wai.woiitii,  Chancellor,  in  l^ates  v.  Delavan 
(18.3.5)  r,  Paige,  299.  300. 

"Now,  if  a  person  sell  any  estate,  h»\iiig  no  interest  in  it  at  the  time,  and 
taken  a  bond  for  sei-uring  the  payment  of  I  lie  purchase  money,  that  is  certainly 
a  fraud,  although  IkiIIi  j)arties  »<hould  be  ignorant  of  it  at  the  time.  .  . 
.\  contingency  may  certainly  lie  soM  on  H])eculiition.  but  not  such  as  was  sold 
here.  Two  [tattirM  are  not  tf>  be  allowed  to  enter  into  an  agreement  to  cli-^'eive 
eoch  other.  ...  I  must  not  be  tohl  that  a  Court  of  Equity  cannot  inter- 
fere where  there  is  no  fraud  shown.  If  c«>ntraeting  parties  have  treated  while 
under  o  mistake,  that  will  l»e  sufficient  grcnind  for  the  interference  of  a  Court 
of  Equity;  but  in  thin  ease  there  is  much  more.  Suppose  1  sell  an  estate  inno- 
cently, whi<h  at  the  time  is  actuiilly  swept  away  by  a  llood,  witliout  my  knowl- 
edge of  the  fact;  am  I  to  be  allowed  to  receive  £5,000  and  interest  because  the 


CHAP.    II.  J  ABBOTT    V.    ALLEN",  475 

In  Abbott  v.  Alle7i  (1817)  2  Johns.  Ch.  519,  S.  C.  7  Am. 
Dec.  55-1  and  note,  the  i)hvintift'  had  contracted  to  purchase  cer- 
tain real  estate,  on  wliich  lie  had  paid  ])art  of  the  purchase 
money,  sriving  a  liond  and  iiioi-t,i,M,i(e  for  the  balance.  He  had 
entered  into  the  possession  and,  at  the  time  of  filin*;  his  bill,  was 
still  undisturbed.  He  now  sought  relief  on  the  bond,  alleging  his 
vendor's  defective  title.  In  denying  the  prayer,  Chancellor  Kent 
said:  '"This  case  comes  within  the  general  doctrine  declared  in  Bumpus 
V.  Platner,  1  Johns.  Ch.  Rep.  213-218,  that  a  purchaser  of  land,  who 
is  in  possession,  cannot  have  relief  here  against  his  contract  to  pay, 
on  the  mere  ground  of  defect  of  title,  without  a  previous  eviction.  But, 
without  resting  on  the  opinion  there  delivered,  I  have  again  examined 
the  question,  inasmuch  as  the  doctrine  in  that  case  was  doubted  by  the 
learned  counsel  who  opposed  this  motion. 

"If  there  be  no  fraud  in  the  case,  the  purchaser  must  resort  to  his 
covenants,  if  he  a})prehends  a  failure  or  defect  of  title,  and  wishes 
relief  before  eviction.  This  is  not  the  appropriate  tribunal  for  the 
trial  of  titles  to  land.  It  would  lead  to  the  greatest  inconvenience, 
and  perhaps  abuse,  if  a  purchaser  in  the  actual  enjoyment  of  land, 
and  when  no  third  person  asserts,  or  takes  any  measures  to  assert,  a 
hostile  claim,  can  be  permitted,  on  suggestion  of  a  defect  or  failure  of 
title,  and  on  the  principle  of  quia  timet,  to  stop  the  payment  of  the 
purchase  mone}'',  and  of  all  proceedings  at  law  to  recover  it.^  Can  this 
Court  proceed  to  try  the  validity  of  the  outstanding  claim,  in  the 
absence  of  the  party  in  whom  it  is  supposed  to  reside,  or  must  he  be 
brought  into  Court  against  his  will,  to  assert  or  renounce  a  title 
which  he  never  asserted,  and,  perhaps,  never  thought  of?     I  appre- 

conveyance  is  e.xecuted  and  a  bond  given  for  that  sura  as  the  purchase-money, 
when,  in  point  of  fact,  I  had  not  an  inch  of  the  land,  so  sold,  to  sell?  That 
was  precisely  the  case  with  the  present  defendant;  and  it  would  be  hard,  in- 
deed, if  a  Court  of  Equity  could  not  interfere  to  relieve  the  purchaser." — Per 
Rlcn.A.ui)s,  ("liief  Baron,  Hitclu-ock  r.  biddings  (1817)  4  Price.  135.  140-141. 
See  as  to  fraud,  Hilliard,  Vendors  (2d  ed.)  c.  xxii;  Sugden.  I.  Vendors, 
4  et  scq :  Story,  1  Equity,  §  184  ct  scq ;  and  see  also  Bostwick  v.  Lewis  (1814) 
1  Day.  250;  S.  C.  2  Am.  Dec.  73  and  note. 

"There  is  no  color  for  a  charge  of  misrepresentation  or  fraud  on  the  part 
of  the  grantors.  I  do  not  uiidcr-tand  tliat  any  such  charge  exists  in  tlie  an- 
swer, or  was  intended  by  it  as  a  siil)stantial  ground  of  defence,  though  such  a 
charge  is  now  put  forward  by  tlie  defendant's  counsel,  as  one  of  their  points. 
But  it  is  requisite  that  the  charge  of  fraud  should  be  made  a  distinct  ground 
of  allegation  by  the  party  in  })fr<idiiio.  otherwise,  it  is  not  to  be  deemed  in 
issue,  and  cannot  affect  the  contract  in  question.  Tliis  was  tlie  clear  and  de- 
cided doctrine  of  the  Court  of  Errors  in  James  r.  M'Kernon,  6  Johns.  543.  and 
that  case  may  be  considered  as  perfectly  in  point  as  to  this  part  of  the  defence." 
— Chancellor  Kext,  in  Governeur  v.  Elmendorf  (1821)  5  Johns.  Ch.  70.  82. — Ed. 

'See  on  this  point  and  also  on  question  of  fraud  the  well-considered  opin- 
ions in  Bcalo  r.  Seivelcv   (1837)   S  Leigh,  (550.— Eu. 


4T»»  ABBOTT    r.    ALLKX.  [  ItooK    II. 

hend  there  is  no  such  practice  or  doctrino  in  this  Court ;  and  that  a 
previous  eviction  or  trial  at  hiw  is,  as  a  general  rule,  indispensable. 
Perhaps!  an  outstanding  encumbrance,  either  admitted  i)v  the  party, 
or  shown  bv  the  record,  may  form  an  exception,  in  cases  of  covenant 
against  encumbrance.  Some  dicla  in  the  books  (see  Serjeant 
Maynard's  case,  2  Freeman,  1.  and  1  Vesey,  88)  seem  to  look  to  that 
point ;  but  I  have  formed  no  opinion  respecting  it.  The  case  of  fraud 
is  an  exception;  and  it  seems  to  be  admitted  by  ^Ir.  Hittlcr  (note 
332  to  Co.  Litt.  384.  a.)  that  if  the  purchaser  was  im])osed  on,  by  any 
intentional  misrepresentation  or  concealment,  he  may  have  redress 
here,  in  addition  to  and  beyond  his  covenants.  The  late  case  of 
Edwards  r.  M'Leavy,  Cooper's  Eq.  Hep.  308,  is  to  this  point.  The 
purcha.^er,  in  that  case,  hrforr  any  eviction  was  had  or  threatened, 
succeeded  in  a  bill  to  set  aside  the  conveyance,  and  for  a  return  of 
the  purchase  money;  but  it  was  expressly  upon  the  ground  of  fraud 
and  imposition  charged  and  proved  ;  and  the  master  of  the  rolls,  in 
answer  to  the  ol)jeetion  that  the  plaintifT  was  picmature,  inasmuch 
as  he  had  not  yet  been  evicted,  and  niiglit  jierliaiis  never  be,  put  the 
case  on  the  ground  of  the  fraud. 

"There  is  no  fraud  charged  in  this  case,  and  tlie  bill  has  no  such 
ground  to  support  it. 

"If  there  be  no  fraud,  an<l  no  covenants  taken  to  secure  the  title 
the  purchaser  has  no  remedy  for  his  money,  even  on  a  failure  of  title.* 
This  is  the  settled  rule  at  law  (Frost  t'.  "Raynioml.  2  Caines,  188)  and 
1  a[)prehend  that  the  same  rul<^  prevails  in  e«iuity.  1  Fonl).  3(i(i,  note; 
Urmston  i;.  Pate,  cited  in  Sugden's  Law  of  Vendors,  3(1.  ed.  3  IC,  347, 
and  in  4  Cruise's  Dig.  90,  and  in  Cooper's  E(|.  Rep.  311.  In  the  case 
of  Hiern  v.  Mill,  13  Ve.sey.  Ill,  the  lord  chancellor  observed,  that 
pos.session  of  land  was  no  critei'ion  of  title,  and  that  no  |ierson,  in  his 
scn.ses,  would  take  an  offer  f)f  a  purchase  from  a  man,  merely  because 
he  stood  upon  the  grouml.  Tlu'  |iur<hiis('r  must  look  to  his  title; 
and  if  he  did  not,  it  would  Ite  rrtissu  ticf/lif/rnfin.  I  know  of  no  case 
in  which  this  Court  has  relieved  the  purchaser  when*  there  was  no 
fraud  and  no  eviction  ;  all  the  ca.'^es  that  I  have  looked  into  proceed 
on  the  ground  of  a  failure  of  the  title  duly  a.^certained.  Thus,  in  tlie 
imperfect  note  of  tlu'  ca.se  of  Picketon  r.  Tiitecote,  22  Fliz.,  cited  in 
21  Viner.  541,  pi.  1,  and  soiuelimes  referred  to,  process  was  awanled 
by  chancery  to  have  the  purchase  money  refunded  ;  imt  in  that  ea.^e 
it  appeared  by  thr*  defendant's  answer,  ///'//  IJir  pJnInllff  rnuhl  uot 
enjntj  the  reversion  of  the  copyhold  which  he  had  purchased  ;  and  in 
the  unotufwnus  case,  in  2  Ch.  Cas.  1!>.  there  was  a  previous  eviction 
under  a  paramojint  title;  but  tlie  aiithority  of  that  case  is  (piestione<l, 
in  a  note  to  the  case  itself,  and  in  the  subsequent  books,  which  refer 

*Hoi'  HnrkhnmHtH  r.  ('nnc  (lH2r))  R  f'nnn.  528  S.  C.  13  Am.  Tier.  02,  nnd 
noff;  Hank-H  r.  Wnlkcr  (lH4.'i)  2  Sanrlf.  Cli.  .'tJJ :  Tallmnn  r.  C.rovn  (1850) 
3  Sandf.  N.  Y.  Sup.  Ct.  Kcp.  437.     Story.  K(|iiity  .Iiirin.  J  77!».— Kn. 


CHAP.    II.]  FROST    V.    RAYMOND.  477 

to  it;^  not,  indeed,  in  resj)eet  to  the  necessity  of  a  previous  eviction, 
whicli  the  case  may  be  considered  as  assumin*^,  but  on  the  ground 
that  there  was  no  covenant  against  paramount  titles,  and  tliat  the 
purchaser,  as  to  them,  took  the  conveyance  at  his  peril.  In  Serjeant 
Maynard's  case,  2  Freeman's  Rep.  1,  referred  to  in  the  passage  cited 
by  the  counsel  from  Viner,  the  lord  chancellor  said,  that  there  being  no 
fraud  or  surprise  in  the  case,  if  the  party  was  not  aided  by  his 
covenants,  he  would  not  be  helped  in  equity;  and  yet  the  purchase 
money  had  been  paid,  and  a  third  person  had  made  title.  There  are 
some  loose  dicta  (for  which  I  presume  the  case  was  referred  to),  hut 
they  are  without  any  fulness  of  illustration,  and  want  that  precision 
which  is  requisite  to  give  much  force  to  them.  The  decision  in  the 
case  is  strong  against  the  pretension  of  the  present  plaintiff;  for 
though  a  third  person  had  made  title,  and  the  plaintiff  had  paid  his 
purchase  money,  yet,  in  consequence  of  a  positive  agreement  with  the 
vendor,  he  was  rigorously  denied  any  relief,  and  left  to  his  remedy, 
if  any,  at  law.  So  again,  in  Bingham  v.  Bingham,  1  Vesey,  126,  on  a 
bill  to  have  purchase  money  refunded  on  a  mistake  in  title,  the  mis- 
take had  appeared  in  an  ejectment  at  law.  It  appears  to  nie  that  this 
principle  pervades  the  cases.''- 


Frost  V.  Raymond  (1804)  2  Caine,  188.  The  plaintiff  brought  an 
action  for  breach  of  an  implied  covenant  as  to  warranty  of  title. 
Kent,  Ch.  J.,  delivered  the  opinion  of  the  court.    "Several  objections 

•See  Tucker  v.  Gordon  (1809)   4  Desaus.  53. — Ed. 

'In  the  case  of  Johnson  v.  Gere  (1817)  2  Johns.  Ch.  546,  decided  less  than 
a  month  later,  the  plaintiff  had  purchased  land  and  pone  into  possession,  giving 
a  bond  and  mortgage  for  the  purchase  money.  While  the  vendor  was  prosecut- 
ing at  hiw  on  the  bond  and  advertising  the  mortgaged  premises  for  sale,  other 
parties  chiiniing  a  superior  title  were  suing  the  plaintill'  in  ejci'tiiicnt.  The 
plaintiff  filed  a  bill  praying  for  an  injunction  to  stay  the  prosecution  on  the 
bond  and  mortgage.  "The  Chancellor  [Kent]  granted  the  injunction,  and  dis- 
tinguished this  case  from  those  wherein  there  was  only  an  allegation  of  an 
outstanding  title,  and  no  disturbance,  prosecution,  or  eviction  thereon.  Here, 
he  said,  the  party  was  actually  prosecuted  by  an  action  of  ejectment,  on  the 
ground  that  the  title  derived  from  the  defendant  was  defective.  The  defendant 
is  entitled,  and  it  will  be  his  duty  to  defend  the  ejectment  suit:  and  until  that 
is  disposed  of.  he  ought  not  to  recover  the  remaining  monej's  due  on  the  bond." 

To  entitle  a  purchaser  to  relief,  it  is  said  he  must  show  not  only  a  defective 
title,  but  no  remedy  at  law.  Payne  r.  Cabell  (1828)  7  Mon.  198;  it  is  also 
said  a  mere  cloud  on  title  will  not  constitute  such  a  defect;  it  must  be  a  defect 
in  law.  Sir  Samuel  Romilly  v.  James  (1815)  6  Taunt.  26.3.  "If  the  cove- 
nants have  been  actually  broken  and  the  gi-antor  is  insolvent,  a  Court  of  Equity 
may  restrain  him  from  proceeding  to  collect  the  whole  amount  due  for  the  pur- 
chase money,  and  may  offset  the  damages  occasioned  by  the  breach  of  the 
covenants  of  seisin  or  of  warranty  against  such  unjiaid  purchase  money.  Simp- 
son r.  Hawkins.  1  Dana's  Kep.  305:  2  Ch.  Cn.  10."~\Voodruff  v.  Runce  (  1S42) 
9  Paige,  443;  S.  C.  38  Am.  Dec.  559,  and  note.     Successfully  to  resist  specific 


478  FROST    r.    RAYMOND.  [bOOK    II. 

are  taken  to  the  validity  of  the  declaration.  I  shall  however  confine 
myself  to  the  first  and  only  important  one  viz.  That  here  was  no 
implied  covenant  or  title.  It  is  exceedingly  interesting  to  the  com- 
munity, that  this  Question  should  be  clearly  settled  and  well  under- 
stood.    We  are  to  examine. 

"1.  Wiiether  a  sale  of  an  estate  in  fee,  hy  the  formal  and  apt  words 
of  conveyance,  and  for  a  valuable  consideration,  does  of  itself  imply 
a  warranty  or  covenant  of  title.  The  counsel  for  the  plaintiff  con- 
tended upon  the  argument  that  it  did. 

"I.  It  seems  upon  the  first  impression  to  be  highly  reasonable  and 
just,  that  every  person  who,  for  a  valuable  consideration,  conveys  land 
.'S  his  own,  should  be  held  to  warrant  the  title  he  so  undertakes  to 
convey,  or  that  he  should  render  l)ack  the  money  upon  failure  of 
tho  title.  This  was  the  rule  of  the  civil  law  in  respect  to  the  sale  of 
both  real  and  personal  property,  concerning  which,  that  system  scarcely 
made  a  distinction,  an  adecjuate  price  inijdving  a  warranty.  Cod. 
lib.  8.  tit.  45.  ch.  6;  Dig.  Lib.  19.  tit.  1.  ch.  11.  ^  2;  Lib.  21.  tit.  «; 
1  Domat.  79.  82.  83;  1  Er.<k.  Inst.  203.  In  the  early  ages  of  the 
feudal  law,  it  .seems  also  to  have  been  considered  as  an  obligation  upon 
the  lord,  to  give  his  tenant  an  equivalent  in  case  of  eviction.  This 
appears  clearly  from  the  book  of  feuds,  which  gives  the  report  of  a 
case  of  an  action  by  the  tenant  against  his  lord,  for  investing  him  with 
a  feud  belonging  to  another,  and  from  which  he  was  evicted.  The 
lord  was  tliore  held  to  restore  him  another  fee  of  equal  value,  or  the 
price  of  it  in  money.  Feud.  lib.  2.  tit.  25  &  80.  But  although  the 
feudal  writers  speak  generally  of  the  lord's  obligation  to  give  the 
tenant  an  equivalent  in  case  of  eviction,  Craig,  and  after  him  Sir 
.Martin  Wright,  thinks  this  obligation  never  could  have  applied  to 
pure  feuds,  which  were  gratuitous  donations  for  uncertain  military 
services,  without  price  or  .stipulated  render ;  and  that  it  could  only  have 
applied  to  improper  feuds,  where  it  was  rea.sonalde  it  should  apply, 
as  in  tho.-ie  cases  a  price  was  given,  or  an  ecjuivalent  contracted  for. 
Int.  to  the  law  of  tenures,  27.  32.  39.  40.  This  very  (|uestion,  whether 
investiture  alone,  without  any  express  promise,  entitled  the  tenant 
on  eviction  to  an  e(|uivalent,  has,  it  is  said,  hocn  much  discussed  by  tht^ 
foreign  civilians.  That  it  is  the  prevailing  opinion  among  them,  that 
the  .seller,  without  any  promise,  is  bound  to  give  an  o(|uivalent,  if  the 
fief  was  originally  granted  for  services  done,  or  in  the  way  of  re- 
muneration.    Butler's  note  315.  to  Co.   Lit. 

porforriianci'  of  ii  contriu-t  to  purchnHo  ronl  OKtnto  for  dofoot  of  title,  "tliorc 
mutit  lit  IciiHt  ho  a  rcuHonalilc  doubt  nn  to  tlio  vcn<lor'H  title — hucIi  as  nfTfct'* 
itit  valup  and  would  inl«Tf«'ro  with  itn  Kale  to  a  roaHonahlo  purchaHor,  and  thus 
rcmliT  the  hind  unniarkctalile.  A  dpfi'«t  in  tlio  record  title  may,  under  certain 
ciriMini«tniices,  furninh  a  «lefencc  to  the  piirduiHcr.  Htit  tliere  is  no  inflcxiljlo 
ruh-  that  a  vendor  nnint  furni-^h  a  ix-i  feet  record  or  paper  title." — Ilclircigel  v. 
Manning  (1884)  »7  X.  V.  56,  60.— Ed. 


ClIAl'.    II.  I  FROST   V.   RAYMOND.  479 

"But  whatever  may  be  our  opinions  on  the  point,  as  an  abstract 
question,  or  whatever  may  be  the  decisions  of  the  civil  law,  or  the 
feudal  and  municipal  law  of  otlier  countries,  we  must  decide  this 
question  by  the  common  law  of  England.  It  was  decided  in  the  case 
of  Seixas  and  Wood,  Ante  48,  that  upon  a  sale  of  jroods,  without 
warranty,  and  without  deceit,  the  purchaser  took  the  soundness  and 
quality  of  them  at  his  peril.  I  think  it  is  evident  that  caveat  emptor 
has  been  always  recognized  in  our  law'  books,  as  a  fixed  maxim,  applic- 
able equally  to  the  transfer  of  lands  and  chattels.^ 

"It  is  a  settled  position  that  an  estate  in  fee  may  be  created  by  the 
usual  and  solemn  forms  of  conveyance,  without  any  warranty  express 
or  implied,  and  that  a  conveyance  in  fee  does  not  ipso  facto  imply  a 
warranty.  If  it  does,  our  books  would  be  inconsistent  and  unin- 
telligible on  this  subject.  "If  a  man,"  says  Lord  Coke,  1  Inst.  6.  a., 
and  also  say  the  judges  in  Buckhurst's  case,  1  Co.  1.,  "maketh  a 
feoffment  in  fee,  without  warranty,  the  purchaser  is  entitled  to  all 
the  charters  and  evidences  incident  to  the  lands,  to  the  end  that  he 
may  defend  himself;  for,  as  the  feoffor  is  not  boxmd  to  warrant  the 
lands,  he  cannot  be  vouched  to  warranty  and  to  render  in  value,  but 
the  feoffee  is  to  defend  the  lands  at  his  peril."  In  the  case  of  Roswell 
and  Vaughan,  2  Cro.  196,  in  the  exchequer,  Taxfield  the  chief 
Baron  said,  "that  if  one  should  sell  lands,  wherein  another  is  in 
possession,  or  a  hor.se,  whereof  another  is  possessed,  without  covenant 
or  warranty  for  the  enjoyment,  it  is  at  the  peril  of  him  who  l)uys,  and 
not  reason  he  should  have  an  action  by  the  law,  where  he  did  not 
provide  for  himself."  So  in  the  case  of  Medina  and  Stoughton,  1. 
Salk.  211,  lord  Holt  observed  "that  if  the  seller  of  goods  have  not 
the  possession,  it  behoves  the  purchaser  to  take  care,  caveat  emptor, 
to  have  an  express  warranty  or  a  good  title ;  and  so  it  is  in  the  case  of 
land,  whether  the  seller  be  in  or  out  of  possession,  for  the  sellei 
cannot  have  them  without  a  title,  and  the  buyer  is  at  his  peril  to 
see  it."  In  a  much  more  recent  case  of  Bree  and  Ilollioch,  Doug.  65-1. 
the  action  was  brought  to  recover  back  money  paid  for  the  purchase  of 
a  mortgage  deed,  wiiich  afterwards  turned  out  to  be  a  forgery.  Lord 
Mansfield,  and  the  court  of  king's  bench,  ruled  for  the  defendant 
on  this  ground  ;  that  the  assignment  contained  no  covenant  for  the 
goodness  of  the  title,  except  only  against  the  acts  of  the  assignor,  and 
that  it  was  incumbent  on  the  purchaser  to  look  to  the  goodness  of  it. 
This  case  was  afterwards  cited  and  sanctioned  by  Lord  Kenyon, 
6.  D.  &  E.  606.  who  said,  that  he  did  not  wish  to  disturb  the  rule 

'There  is  no  iiupliod  wnn;inly  of  title  by  an  executor  on  a  sale,  Joslin  v. 
Couphlin  (lS;i:i)  4  C'u-;li.  (Miss.)  1.34:  Storm  r.  Smith  (1S70-71)  4.3  Miss.  497; 
nor  by  a  trustee.  Fleming  r.  Holt  (1S77)  12  W.  Va.  143.  One  buying  from 
the  State  buys  at  his  peril,  Webster  r.  Clear  (1892)  49  Ohio  St.  392;  as  doe3 
one  punhasiug  a  patent.  Hall  r.  Cornier  (1S27)  2  C.  B.  X.  S.  22.  See  on  this 
point.  Taylor  r.  Hare  and  Marston  v.  Swett,  with  notes,  ante. — Ed. 


480  MAKTIN     r.    Ml-  COIJMICK.  [BOOK    II. 

of  caveat  emptor  adopteil  in  that  case,  ami  in  other  cases,  where  a 
regular  eouveyance  was  made,  to  which  other  covenants  were  not  to 
be  added. 

"This  case  in  Doughis  may  perhaps  be  thought  to  liave  the  less 
weight  as  there  was  a  covenant  against  the  grantor's  own  acts,  and 
it  is  a  rule  that  an  express  covenant  will  do  away  the  I'lTect  of  all 
implied  ones.  4  Co.  80.  6.  Vaugh. ;  126.  Cro.  E,  074,  5.  Butler's  notes 
on  Co.  Litt.  332 ;  2  Bos.  &  Pul.  26 ;  2  Ch.  Ca.  19.  But  the  court  do  not 
intimate  tiuit  they  proceeded  upon  that  ground.  This  they  would 
have  done,  had  they  relied  upon  the  extinguishment  of  the  implied 
covenant  by  means  of  the  express  one.  They  adopted  the  old  rule, 
that  if  there  be  no  covenant  of  title  in  a  deed,  the  purchaser  takes 
at  his  own  risk,  the  goodness  of  the  title. 

''After  this  rule  has  been  so  long  understood  and  practiced  upon,  it 
would  be  of  the  most  mischievous  consequence  to  establish  a  con- 
trary doctrine.  The  parties  to  deeds  know  that  a  covenant  is  requisite 
to  hold  the  seller  to  warrant  the  title,  and  they  regulate  their  contracts 
accordingly.  If  there  be  any  fraud  in  tlie  sale  tiie  purchaser  lias  his 
remedy.  If  one  sell  land,  atlirming  he  had  a  good  title,  when  he  knew 
he  had  no  title,  an  action  on  the  case  for  a  deceit,  will  lie  Com.  Dig. 
tit.  action  on  the  ca.>^e  for  a  Deceipt,  A.  8.  1  Foiib.  366." 


MAKTIN  r.  .McCOiniirK. 

COUKT   OK    .VlM'KALS,    lS.54. 

[8  New  )'ork-.  331.] 

The  appeal  in  this  action  was  from  a  judgment  of  the  superior  court 
of  the  city  of  New  York.  The  questions  decided  arose  uj)on  the 
pleadings.  The  plaintiff  sought  to  recover  as  money  received  by  the 
defendant  to  his  use. 

The  action  was  tried  before  Mr.  .lusiice  .M.\s()n,  at  sj)eeial  term, 
who  ordered  a  judgment  for  the  defendant  wliich  was  allirmcd  at 
general  term.  (See  I  Sand.  366.)  The  ])laiiilifT  apjiealed  to  this 
court. 

JoMNHON,  .1.,  delivered  the  opinion  of  the  court.  In  this  case  the 
defendant  was  in  possession  of  an  instrument  under  the  seal  of  the 
corporation  of  the  city  of  Xew  York,  by  which  I  hi  re  purported  to 
bo  created  in  him  an  estate  for  the  term  of  one  huinlred  years,  in  a 
houHe  and  lot  of  land  in  the  city  of  New  York.  'IMie  plain! ilT  was  at 
the  time  in  possession  of  the  bouse  and  lot,  claiming  to  lie  and  being 
seized  thereof  in  fee.  unless  the  lease  held  l)y  the  defendant  created 
a  valid  term  ff»r  years  in  him.     The  defendant  as  matter  of  fact  bc- 

'.\<r.  McManiH  r.  Ulnckninn   (  IHUI  )   17  Minn.  .'Cll  — Ki». 


CHAP.    II.]  MARTIN   V.    MC  CORMICK,  481 

lieved.  the  lease  did  give  him  the  term  which  it  purported  to  convey. 
The  phiintitr  also  so  believed,  and  thereupon  a  har<(ain  was  entered  into 
between  them  in  pursuance  of  which  the  plaintitl'  paid  the  defendant 
$1800,  and  received  in  consideration  thereof  an  assignment  of  the 
term.  The  jtlaintifT  now  seeks  to  recover  back  tiiis  money  upon  the 
general  ground,  thai  the  defendant,  notwithstanding  his  apparent 
interest  in  the  premises,  had  no  estate  in  them  whatever,  the  lease  from 
the  corporation  being  invalid,  and  that  he  purchased  the  lease  and 
paid  the  money  under  an  entire  misapprehension  and  mistake  as  to 
the  facts  uj)on  which  depended  tlic  validity  or  invalidity  of  the  de- 
fendant's lease. 

This  is  not  the  case  of  money  paid  by  a  party  under  a  mistaken 
idea  of  the  existence  of  a  legal  obligation  binding  him  to  pay  it;  nor 
that  of  a  party  seeking  to  resist  the  performance  of  an  executory 
contract  to  pay  money,  entered  into  under  such  circumstances  of 
mistake.  Of  this  latter  sort  was  Bell  v.  Gardiner,  4  Man.  &  Gr.  11, 
in  which  the  action  was  upon  a  promissory  note  given  by  the  defendant 
for  the  amount  of  a  bill  of  exchange  on  which  defendant  was  en- 
dorser, but  which  had  been  altered  after  endorsement,  whereby  he 
ceased  to  l)e  liable.  The  jury  found  that  the  defendant  when  he 
gave  the  note  had  no  knowledge  of  the  alteration,  but  the  judge  refused 
to  submit  to  them  the  question  whether  the  defendant  had  the  means 
of  knowledge.  All  the  judges  held  that,  this  being  only  a  promise 
to  pay,  the  defendant's  position  was  much  stronger  than  if  he  had 
been  plaintiff  in  an  action  to  recover  back  the  money;  but  as  the 
case  had  been  argued  on  its  analogy  to  a  claim  to  recover  back  money 
paid,  they  considered  it  in  that  light  also,  and  approved  of  Kelly  v. 
Solari,  9  M.  &  W.  54,  in  which  they  held  it  to  have  been  determined, 
that  in  an  action  to  recover  back  money  paid  under  a  mistake  of 
facts,  it  was  not  necessary  to  negative  means  of  knowledge  as  well 
as  knowledge  of  the  true  state  of  the  facts. 

Kelly  r.  Solari,  belonged  to  the  former  class.  It  was  an  action 
to  recover  back  the  amount  paid  by  an  insurance  company  upon  a  life 
policy,  which  the  insured  had  by  mistake  permitted  to  expire.  The 
fact  that  it  had  lapsed  was  known  to  the  olTicers  of  the  com]>any,  who 
afterwards  having  forgotten  the  facts  paid  the  loss.  The  court 
held  that  this  fact  of  forgetting  was  no  answer  to  the  action.  It  is 
not  necessary  to  pursue  this  line  of  cases,  for  they  do  not  touch  any 
ground  upon  which  this  plaintiff  can  succeed.  He  has  entered  into 
a  contract  which  has  been  executed,  and  his  position  is  that  of  one 
peeking  to  rescind  the  contract  and  get  back  the  consideration  paid. 
Xo  case  of  fraud  is  pretended.  "McCormick  and  the  plaintiff  both 
believed  that  the  lease  was  valid,  and  one  bought  and  the  other  sold 
under  that  belief. 

The  parties  did  not  deal  witli  each  other  upon  the  footing  of  the 
compromise  of  a  doubtful  or  doubted  claim,  but  upon  the  ground 


482  MARTIN    r.    MCCORMICK.  [bOOK    II. 

of  a  conceded  right  in  tlie  defendant.  He  was  assumed  by  botli  of 
them  to  have  become  the  owner  of  a  term  for  one  hundred  years  in 
the  premises  in  question,  and  the  parties  dealt  with  each  other  upon 
that  basis  for  the  sale  and  purchase  of  that  interest. 

Then  as  to  the  subject  matter  upon  which  the  sale  was  to  operate, 
the  plaintilf  having  actually  rt'clecnu'd  the  premises  before  the  execu- 
tion of  the  lease  to  the  defendant,  the  authority  to  convey  which  the 
corporation  had  acquired  was  defeated,  and  their  lease  was  wholly 
inoperative  to  confer  upon  the  defendant  any  right  whatever,  and  had 
no  more  significance  or  ethcacy  in  law  than  if  it  had  remained  un- 
executed. It  follows,  that  the  assignment  executed  by  McCormick  to 
Martin  did  not  convey  to  him  any  right.  The  subject  matter  to  which 
it  related  had  no  existence.*  The  plaintiff  in  my  judgment  occupies  the 
same  position  which  any  other  person  would  have  occupied  who  had 
dealt  with  the  defendant  for  the  term  ot  one  hundred  years,  and  be- 
come the  purchaser  of  it. 

Now  the  term  which  was  the  subject  of  the  contract,  contrary  to  the 
supposition  of  both  parties  had  no  existence,  and  in  all  that  class  of 
cases  where  there  is  mutual  error  as  to  the  existence  of  the  subject 
matter  of  the  contract,  a  rescission  may  be  had  ( 1  Story  Eq.  §§  141, 
142,  143).  The  case  of  Hitchcock  v.  Giddings,  4  Price,  135,  was  a  bill 
by  a  vendee  of  a  remainder  in  fee  expectant  upon  an  estate  tail.  A 
recovery  had  been  suffered  at  the  time  of  the  contract,  though  both 
parties  were  ignorant  of  the  fact,  and  there  had  been  no  fraud  from 
knowledge  or  concealment  of  the  fact,  and  it  was  decreed  that  a  bond 
given  for  the  purchase  money  should  be  delivered  up,  and  the  interest 
which  had  been  paid  upon  it  should  be  refunded. 

I  do  not  see  how  the  principle  of  this  case  can  be  distinguished 
from  that  at  bar;  for  surely  it  can  be  no  ground  of  (liirercnce  in  result, 
that  in  the  one  case  an  estate  which  had  once  existed  had  at  the  time 
of  the  contract  come  to  an  end,  while  in  the  other  the  estate  which 
was  the  subject  of  the  contract  had  no  existence  at  any  time,  .\llen 
I'.  Hammond,  11  Pet.  71. 

The  judgment  below  should  be  reversed,  and  the  sale  be  declared 
rescinded,  &c. 

HroGLEs,  Ch.  .).,  and  (Jakdi.vkk,  Jkwktt.  Tacciaht.  ^roHSE  and 
Wii.i.iAiM),  .T.T.,  concurnMl. 

Mason,  .J.,  was  in  favor  of  nuMJifyiiig  the  judgment  of  the  superior 
court,  so  as  to  dismiss  the  complaint  without  prejudice  to  an  action 
for  specific  relief,  by  avoiding  tlie  contract  for  the  purchase  of  the 
lease. 

Judgment  reversed,  &c.' 

'\Vhil*>  \h\n  rntM>  illiiHtrntoH  tho  dortrinp  nf  tlio  procorlinjr  »potion,  it  ih  placed 
hpff  n<*  Mhowlny  wlicn  (bo  nil*'  of  ravrat  rmjitnr  fiiil-*  an  to  roalty. — Kn. 

'In  CrippH  V.  lUnd    (  ITtiO)    fl  T.  U.  000,  tlio  plaintiff  wnn  pcrniittod  to  rc- 


CHAP.    II.]  TRICE    V.    NEAL.  483 

(3)  Mistake  as  to  the  Validity  or  Amount  of  the  Claim,  or  as  to  a  Collateral 

Fact. 

PRICE  V.  NEAL. 

King's  Bench,  1762. 

[3  Burrow,  1354.] 

This  was  a  special  case  reserved  at  the  sittings  at  Guildhall,  after 
Trinity  term,  1762,  before  Lord  Mansfield. 

It  was  an  action  upon  the  case  brought  by  Price  against  Xeal, 
wherein  Price  declares  that  the  defendant  Edward  Neal  was  indebted 
to  him  in  £80  for  money  had  and  received  to  his  the  plaintiff's  use; 
and  damages  were  laid  to  £100.  The  general  issue  was  pleaded,  and 
issue  joined  thereon. 

It  was  proved  at  the  trial,  that  a  bill  was  drawn  as  follows : — 

"Leicester,  22d  November,  1760.  Sir,  six  weeks  after  date  pay  Mr. 
Eogers  Ruding  or  order  forty  pounds,  value  received,  for  Mr.  Thomas 

cover  as  money  had  and  received  the  purchase  price  of  leasehold  interest,  to 
which  the  defendant,  the  seller,  had  no  interest;  and  so  as  to  purchase  of  land 
in  Johnson  v.  Johnson  (1802)  .3  B.  &  P.  162;  but  in  both  these  cases  everything 
passed  in  parol,  no  deeds  being  given.  See  Taylor  v.  Read  (1872)  19  Minn. 
372;  Pipkin  v.  James  (1839)   1  Humph.  325,  S.  C.  34  Am.  Dec.  652. 

"If  the  title  fails  for  want  of  authority  in  the  person  who  makes  the  deed 
to  act  in  the  capacity  in  which  he  professes  to  act,  the  consideration  may  be 
recovered  back.  Shearer  v.  Fowler,  7  Mass.  31 ;  Williams  v.  Reed,  5  Pick.  480; 
Dill  V.  Wareham,  7  Met.  438;  Holden  v.  Curtis,  2  N.  H.  61."— Earle  v.  Bick- 
ford  (1863)  6  Allen  549,  550.  So,  if  title  fails  because  the  land  is  seized  by 
the  grantor's  creditors,  Leach  v.  Tilton  (1860)  40  X.  H.  473. 

One  hypothecating  collateral  does  not  warrant  the  title,  Ketchum  r.  Bank 
of  Commerce  (185!))    19  N.  Y.  499. 

See  also  Thomas  v.  Bartow  (1872)  48  X.  Y.  193;  Campbell  r.  Brown  (1842) 
6  How.   (Miss.)    106. 

In  suit  to  recover  money  paid  by  purchaser  of  real  estate,  alleging  defective 
title,  the  court  said,  citing  Hellreigcl  r.  ^Manning  (1884)  97  N.  Y.  56:  "We 
disagree  with  the  court  at  general  term  upon  the  necessity  in  such  case  as  this 
of  showing  that  the  title  is  absolutely  bad.  We  think  that  if  there  were  a 
reasonable  doubt,  such  as  to  efTect  the  value  of  the  property,  and  to  interfere 
with  the  sale  of  the  land  to  a  reasonable  purchaser,  the  plaintiff's  cause  of 
action  would  be  sustained."  Methodist  Episcopal  Church  Home  v.  Thompson 
(1888)  108  X.  Y.  018:  But  in  Bcrnei  r.  Mayor  (1881)  56  Md.  351.  it  was  held 
that  to  defeat  an  action  for  recovery  of  purchase  money,  a  perfect  title  nuist 
be  given. 

In  an  action  on  a  note  given  for  the  purchase  price  of  land,  the  defendant 
was  not  permitted  to  show  a  partial  or  even  total  failure  of  title.  Lloyd  v. 
Jewell  (1821)  1  Greenl.  352;  Hammatt  r.  Emerson  (1847)  27  Me.  308  S.  C. 
46  Am.  Dec.  598  and  note:  In  Tourville  r.  Xaish  (1734)  3  P.  Wms.  307,  it 
was  said  that  one  sued  on  bond  given  for  purchase  of  land,  on  which  was  aa 


484  I'KU'K  V.  ni:al.  (hook  ii. 

Poughfor;  as  advised  by,  Sir,  your  luunbk'  sorvaut,  BL-njainin  Sutton. 
To  Mr.  John  Price  in  Bush-lane,  Cannon-street,  London."  Indorsed 
"R.  Kuding,  Antony  Topliani,  Hainniond,  and  Liioche.  Received  the 
contents,  James  Watson  and  Son;  witness  lOdward  Xcal." 

That  this  bill  was  indorsed  to  the  defendant  for  a  valuable  con- 
sideration, and  notice  of  the  bill  left  at  the  plaintiff's  house,  on  the 
day  it  became  due.  Whereupon  the  plaintiff  sent  his  servant  to  call 
on  the  defendant,  to  pay  him  the  said  sum  of  t  lo  and  take  uj)  the  said 
bill;  which  was  done  accord injj;ly. 

That  another  bill  was  drawn  as  follows: — 

''Leicester,  1st  February.  17(!1.  Sir,  six  weeks  after  date  pay 
^Ir.  Ko^a-rs  Ruding  or  order  forty  pounds,  value  received,  for  Mr. 
Thomas  Plou<;hfor;  as  advised  by.  Sir,  your  humble  servant,  Benjamin 
Sutton.  To  Mr.  John  Price  in  Bush-lane,  Cannon-street,  London." 
That  this  bill  was  indorsed,  *'R.  Ruding,  Thomas  Watson  and  Son. 
Witness  for  Smith,  Right  and  Co."  That  the  plaintitT  accej^ted  this 
bill,  by  writing  on  it,  "Accepted  John  Price;"  and  that  ])huntilT  wrote 
on  the  back  of  it:  "Messieurs  Freame  and  Barclay,  pray  i)ay  forty 
pounds  for  John  Price." 

That  this  bill  bcMUg  so  accepted  was  indorsed  ti»  the  defendant  for  a 
valuable  consideration,  and  left  at  his  bankers  for  payment;  and  was 
paid  by  order  of  the  plaintiff,  and  taken  up. 

equitable  incunibrance,  of  which  he  had  no  notice  at  tiiiu'  of  purchase,  could, 
on  such  suit  l»cin<,'  hrou^'ht,  ^o  into  equity  and  secure  order  j)crniitlin;;  him  to 
retain  sullicicut  from  amount  due  to  dischar<.'e  the  incuml)rancc.  See  also 
Bowan  v.  Thrall  (IS.'JO)  28  Vt.  :iH2. 

"He  who  purchases  a  tract  of  land,  knowing'  tlic  title  to  he  defective,  takes 
the  risk  upon  himself.  Alexander  r.  Kerr,  2  Kawle,  00;  Walker  r.  Qui^,  •> 
Watts  90."— Rohr  v.  Kindt  (184-2)  :i  W  .  i  S.  afi.'l,  nfifj.  S.  C.  30  Am.  Dec.  5:{,  and 
note;  and  nee  Caswell  r.  .ManufiH-turin;;  Co.    (1817)    14  .Johns.  4r).'{. 

As  to  the  necessity  of  an  eviction,  either  as  a  defence  to  suit  for  j)urchase 
AUinvy,  fir  as  an  essential  for  recoverinj^  purchase  moiu\v  jiaid,  see  l'ri>l>ce  r. 
HoJTna^de  (1814)  11  .Johns.  .'50;  Vihliard  r.  .Johnson  (IHiil  )  l!»  .Inlms.  77; 
Whitney  v.  Lewis   (18;j!l)   24  Wend.  i:n. 

F'or  discussions  of  question  of  danui;,'es  for  hrcacli  of  cnvcMant  to  convey, 
see  Flureau  r.  Thornhill  (1770)  2  Wm.  Hlack.  1078;  Main  r.  Kother^'ill  (1874) 
L.  R.  7  H.  I..  I.'i8:  Kirkpatrick  v.  Downing  (1874)  58  Mo.  :12 ;  S.  C.  17  Am. 
Rep.  078  antl  note;  also  notes  in  ."ia  Am.  Hep.  008-014;  :{!»  .\m.  Der.  .'iO ;  and 
an  article  hy  Washburn   in   11    Alb.  L.  J.  280. 

As  to  what  satisfies  a  c«)nfract  to  convey  in  fee,  sec  I''uller  v.  Hubbard 
(1820)  0  Cowen,  l.'J,  S.  C.  10  .Xm.  Dec.  42.'J,  and  note;  or  it  contract  to  convey 
a  gnoil  title,  Tinncy  v.  Ashley  (18.12)  If)  Pick.  540.  S.  C.  20  Am.  Dec.  020  and 
note;  Demesmey  v.  fJavelin  (1870)  .SO  111.  O.T ;  and  see  2  llilliard.  Vendors 
39  rt  acq.,  and  note  on  pa^e  40;  n«)te  11  .\m.  Dee.  .'{4;  or  a  conlract  to  convey 
nil  one's  ri^ht,  title,  and  interest.  .Ii>bn>«on  r.  Tord  (18.'{:{)  1  Dana.  470.  S.  C 
26  Am.  Dec.  102  and  note.. 

An<l  see  on  the  subject  of  mistake  and  failure  of  title  generally,  Ilawlc. 
Covenanls.  9  .110  vt  «c</.  ,•  Su>;di'n,  N'endors,  .xiii,  sec.  ii. — Ed. 


CIIAl'.    1 1.  J  PHICK    V.    NKAL.  485 

Both  these  billsjwere  forged  by  one  Leo,  who  has  l)een  since  hanged 
for  forgery. 

The  defendan^Xcal  iiotcd  innocciiitlv  and  bona  fide,  without  the 
least  privity  or  suspicion  of  the  said  forgeries  or  of  either  of  them; 
and  paid  the  whole  value  of  those  bills. 

The  jury  found  a  verdTc-f  for  the  plainuff,  and  assessed  damages  £80 
and  costs  40s.,  subject  to  the  opinion  of  the  court  upon  this  question, — 

"Whether  the  plaintiff,  under  the  circumstances  of  this  case,  can 
recover  back  from  the  defendant  the  money  he  paid  on  the  said  bills, 
or  either  of  them." 

Mr.  Stowe,  for  the  plaintiff,  argued  that  he  ought  to  recover  back 
the  money,  in  this  action,  as  it  was  paid  by  him  by  mistake  only,  on 
supposition  "that  these  were  true  genuine  bills;"  and  as  he  coidd 
never  recover  it  against  the  drawer,  because  in  fact  no  drawer  exists; 
nor  against  the  forger,  because  he  is  hanged. 

He  owned  that  in  a  case  at  Guildhall,  of  Jenys  v.  Fawler  et  ah, 
2  Str.  94G  (an  action  by  an  indorsee  of  a  bill  of  exchange  brought 
against  the  acceptor),  Lord  Kaymoxd  would  not  admit  the  defendants 
to  prove  it  a  forged  bill,  by  calling  persons  acquainted  with  the  hand 
of  the  drawer  to  swear  "that  they  believed  it  not  to  be  so;"  and  he 
even  strongly  inclined,  "that  actual  proof  of  forgery  would  not  excuse 
the  defendants  against  their  own  acceptance,  which  had  given  the  bill 
a  credit  to  the  indorsee." 

But  ho  urged,  that  in  the  case  now  before  the  court  the  forgery  of 
the  bill  does  not  rest  in  belief  and  opinion  only,  l)ut  has  been  actually 
proved,  and  the  forger  executed  for  it. 

Thus  it  stands  even  upon  the  accepted  bill.  But  the  plaintiff's 
case  is  much  stronger  upon  the  other  h\]\  which  was  not  accepted. 
It  is  not  stated  "that  that  bill  was  accepted  before  it  was  negotiated;" 
on  the  contrary,  the  consideration  for  it  was  paid  by  the  defendant 
before  the  plaintiff  had  seen  it.  So  that  the  defendant  took  it  upon 
the  credit  of  the  indorsers,  not  upon  the  credit  of  the  plaintiff;  and 
therefore  the  reason,  upon  which  Lord  Raymond  grounds  his  inclina- 
tion to  be  of  opinion  "that  actual  proof  of  forgery  would  be  no 
excuse,"  will  not  hold  here. 

]\rr.  Y^afes.  for  the  defendant,  argued  that  the  plaintiff  was  not 
entitled  to  recover  back  this  money  from  the  defendant. 

He  denied  it  to  be  a  payment  by  mistake,  and  insisted  that  it  was 
rather  owing  to  the  negligence  of  the  plaintiff,  who  should  have 
inquired  and  satisfied  himself,  "whether  thu  bill  was  really  dra^\Ti 
upon  him  by  Sutton,  or  not."  Hen^  i>j  no  fraud  in  the  def(Midant, 
who  is  stated  "to  have  acted  innocently  and  hmm  fide,  without  the 
least  privity  or  suspicion  of  \ho  forgery ;  and  to  have  paid  the  whole 
value  for  the  bills." 

Lord  ^lAXsriELD  stopped  him  froMi  sjning  on.  saving  that  this  was 
one  of  those  cases  that  could  never  be  made  jdainer  by  argument. 


48G  PRICE   V.    NEAL.  [BOOK    II. 

It-isan  action  upon  the  case  for  money  had  and  received  to  the 


plaintiffsu??:  In  uJiielritction,  the  plaintiff  cannot  recover  the 
mOTic}-,  unlf^s  it  he  against  conscience  in  the  defendant  to^f^iin  it^; 
and  fTTcat  liberality  is  always  allowed  iii  this  sort  of  action. 

But  it  can  never  be  thought  unconscientious  in  the  defendant,  to 
retain  this  money,  when  he  has  once  received  it  ujjon  a  bill  of  excTianffe 
indorsed  to  hira  for  a  fair  and  valuable  consideration,  whicJi  he 
had  bona  fide  paid  without  the  least  privity  or  suspicion  of  any 
forgery.* 

Here  was  no  fraud ;  no  wrong.  It  was  incumbent  upon  the  plain- 
tiff to  be  satisfied  "that  the  bill  drawn  upon  him  was  the  drawer's 
hand,"  before  he  accepted  or  paid  it ;  l)ut  it  was  not  incuml)ent  upon 
the  <lefendant  to  inciuire  into  it.  Here  was  notice  given  by  the 
defendant  to  the  plaintiff  of  a  bill  drawn  upon  him,  and  he  sends 
his  servant  to  pay  it  and  take  it  up.  The  other  bill  he  actually  accepts ; 
after  which  acceptance,  the  defendant  innocently  and  honn  fide  dis- 
counts it.  The  plaintiff  lies  by  for  a  considerable  time  after  he  has 
paid  these  bills,  and  then  found  out  "that  they  were  forged ;"  and  the 
forger  comes  to  be  hanged.  He  made  no  oijjection  to  them,  at  the 
time  of  paying  them.  Whatever  neglect  there  was,  was  on  his  side. 
The  defendant  had  actual  encouragement  from  the  plaintiff  himself, 
for  negotiating  the  i^econd  bill,  from  the  plaintiff's  having  without 
any  scruple  or  hesitation  paid  the  first;  and  he  paid  the  whole  value 
bona  fide.  It  is  a  misfortune  which  has  happened  without  the  defend- 
ant's fault  or  neglect.  If  there  was  no  neglect  in  the  plaintiiT.  yet 
there  is  no  reason  to  throw  off  the  lo.ss  from  one  innocent  man  upon 
another  innocent  man ;  but,  in  this  ca.se,  if  there  was  any  fault  or 

•"Then'  is  in  the  lanpuajje  of  tlio  authorities  cited  nothinp  unfonscientioua 
in  tlif  dofenclant's  retaining'  the  inonoy,  and  no  reason  why  the  loss  as  l>et\veen 
parties  thus  equally  innocent  and  eqiially  deeeived.  hut  where  one  is  hound  to 
know  and  art  ufion  his  knowlcd^re,  and  the  otlier  has  no  means  of  knowled^je, 
Hhould  he  thrown  upon  the  latter  in  exoneration  of  the  former.  The  safest 
rule  for  the  eommereial  ptddie,  as  well  as  the  most  consistent  with  justice  is 
to  allow  the  loss  to  remain  where,  by  the  course  of  business,  it  has  been  placed." 
— C'ommercial  A  Farmers'  Nat.  Bank  r.  First  Nat.  Hank  (IRfiR)  .lO  Md.  11,  22. 

"The  f>laintin',  in  fact,  never  asked  to  see  the  draft,  but  of  his  own  accord 
paid  it  without  siyht.  If  ne>;lit.'ence  is  charp-able  to  eitlier  party,  it  is  clearly 
with  the  plaint ifT  in  payin;.'  the  draft  under  such  <  ircumstances.  Hut  if.  in 
this  respect,  the  parties  stand  on  an  e(|iiiil  fnotin<.'.  then  the  loss  must  fall  upon 
him  who  has  paid  the  money  rather  than  ujxrn  him  who  has  received  it,  Itoth 
parties  aelin;j  in  {.'"od  faith.  In  the  fJlouccHter  Hank  r.  Salem  Hank,  17  Mass. 
41,  a.  ease  in  principle  like  the  one  at  bar.  Pahkkr,  .1.,  in  <leliverin)?  the 
opinion  of  the  Court,  snys:  'The  just  and  sound  principle  of  decision  has  been 
that,  if  the  Iohh  can  be  traced  f«)  the  fault  or  nc^liyence  of  either  party,  it 
should  Ix-  fixed  on  him.  fJenerally,  where  no  fault  or  ncylip-ncc  in  imputable, 
the  loHH  has  been  nifTered  to  remain  where  the  course  of  business  has  placed 
It.' "— Ik-rnhcWiier  v.  .Marshall  k  Co.   (1858)   2  Minn.  78,  83.— Ed. 


CHAP.    II.]  PRICE    V.    NEAL.  487 

negligence  in  any  one,  it  certainly  was  in  the  plaintiff,  and  not  in  the 
defendant. 

Eule;  that  the  postea  be  delivered  to  the  defendant.^ 

*That  the  drawee  or  acceptor  must  know  the  signature  of  the  drawer, 
see  Gloucester  IJank  v.  Bank  (1820)  17  Mass.  33;  Levy  v.  U.  S.  Bank  (1810)  1 
Binney,  27,  S.  C.  4  Dall.  234;  National  Ban!:  of  Commerce  v.  Grocers'  National 
Bank  (1807)  2  Daly,  289,  S.  C.  35  Howard  Prac.  412;  Stout  v.  Benoist  (186C) 
39  Mo.  277;  Howard  v.  Mississippi  Bank  (1870)  28  La.  Ann.  727,  overruling 
the  earlier  case,  contra,  McKleroy  v.  Southern  Bank  of  Kentucky  (1859)  14 
La.  Am.  458;  Salt  Springs  Bank  v.  Syracuse  Savings  Bank  (1863)  62  Barb.  101. 

But  the  drawee  is  not  bound  to  know  the  signature  of  the  payee.  Insurance 
Co.  V.  Bank  (1881)  00  N.  H.  442,  as  against  a  bona  fide  holder.  Carpenter  v. 
Northborough  National  Bank  (1877)  123  Mass.  6G.  See  also  Talbot  v.  Bank 
of  Rochester  (1841)  1  Hill,  295;  Arnold  r.  Cheque  Bank  (1870)  1  C.  P.  D.  578. 
See  Norton,  Bills  and  Notes,  §  70,  71;  Bigelow,  Bills,  Notes,  and  Cheques,  223 
seq. 

"The  xuleestablished  by  Price  v.  Neal,  that  a  drawee  pays,  (or  acceptsij_at 
his  peril  a  bill,  on  which  the  drawer's  signature  is  iorged,  has  been  repeatedly 
recognized  both  m  England  and  the  United  States._  The  same  rule  prevails 
in  Scotland  and  on  the  continent  of  Europe.  Unfortunately,  there  is  not  a 
similar  unanimity  as  the  reason  of  the  rule.  The  drawee's  inability  to  re- 
cover the  money  paid  is  often  referred  to  his  supposed  negligence.  He  ought, 
it  is  said  to  know  the  signature  of  the  drawer.  Against  this  view  two  suffi- 
cient objections  may  be  urged.  In  the  first  place,  negligence  on  the  part  of 
the  payor  is  not,  in  general,  a  bar  to  the  recovery  of  money  paid  under  a  mis- 
take. If,  for  instance,  a  creditor  receives  payment  of  a  debt,  which  has  already 
been  paid,  although  he  may  have  received  the  money  in  good  faith,  and 
the  debtor  may  have  paid  in  careless  forgetfulness  of  the  prior  payment,  it  is 
obviously  unjust  for  the  creditor  to  retain  the  second  payment,  and  thereby 
enrich  himself  at  the  expense  of  the  debtor.  Secondly,  if  the  drawee's  negli- 
gence were  the  test,  he  ought  to  be  allowed  to  show,  in  a  given  case,  that  he 
was  not  negligent;  for  example,  that  the  forgery  was  so  skilfully  executed  as 
naturally  to  deceive  him.  But  such  evidence  would  not  be  received.  'If  the 
bank  pays  money  on  a  forged  check,  no  matter  under  what  circumstances  of 
caution,  or  however  honest  the  belief  in  its  genuineness,  if  the  depositor  him- 
self be  free  from  blame  and  has  done  nothing  to  mislead  the  bank,  all  the  loss 
must  be  borne  by  the  bank,  for  it  acts  at  its  peril.' 

"Anotiier  so-called  explanation  of  the  rule,  that  the  drawee  pays  a  forged 
bill  at  liis  peril,  has  obtained  great  currency;  namely,  that  the  drawee  is  'con- 
clusively presumed  to  know,'  or  is  'estopped  to  deny,'  the  signature  of  the 
drawer.  These  expressions  are  repeated  by  text-writer  and  judge,  apparently 
without  a  suspicion  of  their  worthlessness  as  an  explanation  of  the  rule  in  ques- 
tion. Yet  to  one  asking  why  the  drawee  pays  at  his  peril,  it  is  no  sufficient 
answer  to  say,  that  the  drawee  is  conclusively  presumed  to  know  the  drawer's 
signature.  A  conclusive  presumption  of  the  drawer's  knowledge  means  simply 
that  his  ignorance,  whether  culpable  or  excusable,  is  an  irrelevant  fact.  The 
question,  therefore,  immediately  recurs:  Why  is  the  drawee's  excusable  ignor- 
ance an  irrelevant  fact  ? 

"The  holder's  right  to  retain  the  money  paid  him  by  the  drawee  has  some- 


488  ELLIS    4    MORTON    r.    OHIO    LIFE    INSUKANCE    CO.     [BOOK    II. 

ELLIS  &  MOKTOX  r.  OHIO  LIFK  IXS.  AND  TIU'ST  CO. 

Sli'KEMe  Colut  OF  Ohio,  1855. 

[A  Ohio  State,  G2S.] 

Error  to  the  Superior  Court  of  Cincinnati. 

The  original  action  was  one  of  assumpsit,  brought  in  the  court 
of  common  pleas  of  Hamilton  county,  December  ^Dth,  1852,  but 
removed  to  the  superior  court  of  Cincinnati,  by  consent  of  parties, 
May  11th,  1854.  The  declaration  is  for  money  had  and  received, 
money  paid,  money  lent,  and  money  found  to  be  due  on  aiTTccouiit 
stated.    The  pleas  is  tiie  general  issue. 

On  the  14th  of  June,  1854,  at  a  special  term  of  the  superior  court, 
held  by  the  Hon.  Bellamy  Storeh,  the  cause  came  on  to  be  tried  by 
jury.  When  the  plaintiffs  had  produced  all  their  evidence  and  rested, 
the  defendants  moved  for  a  nonsuit,  which;  after  argument,  was 
granted.    Whereupon  a  bill  of  exceptions,  presenting  all  the  evidence, 

times  been  placpcl  upon  the  {ground,  that,  in  consequence  of  the  payment,  he  has 
lost  the  ripht  of  recourse  against  prior  indorsers,  which  he  wouhl  have  had,  in 
case  the  hill  had  been  dishonored.  There  seems  to  he  great  force  in  this  argu- 
ment. lUit,  if  the  hohh'r's  right  of  retention  were  founded  solely  upon  this 
argument,  it  would  follow  that  in  cases  where  there  were  no  prior  indorsers, 
he  would  have  to  refund  the  money  to  the  drawee.  lUit  the  decisions  show  that 
tho  drawee  pays  at  his  peril  in  these  cases  also.  The  holder's  right  to  retain 
the  iiumey  must  di'pen<l,  tiierefore.  upon  a  more  comprehensive  jii  im  iple  than 
that  of  the  loss  of  rights  against  prior  indorsers. 

"The  true  principle,  it  is  submitted,  upon  which  cases  like  Price  r.  Xcal  are 
to  be  supported,  is  that  far-reaching  principle  of  natural  justice,  that  as  be- 
tween two  persons  having  ef|u:il  etpiities,  one  of  whom  nnist  sulTer,  the  legal 
title  s<hall  prevail.  The  holder  of  the  bill  of  exchange  j)aid  away  his  money 
when  he  bou;;ht  it  ;  the  drawee  parted  with  his  money  when  he  took  up  the 
bill.  Kach  paid  in  the  beli«'f  that  the  liill  was  genuine.  In  point  of  naliiral 
justice  they  are  equally  meritorious.  Hut  llie  Iwdder  has  the  legal  tith'  to  the 
money.  A  court  of  etjuity  (and  the  action  of  assumpsit  for  money  had  and 
rp<-eive<l  is.  in  substance,  a  bill  in  ecpiity)  cannot  properly  interfere  to  compel 
the  holder  to  surrender  his  legal  a<lvantage.  The  same  reasoning  applies  if  the 
drawn-  has  merely  accepted  the  bill.  The  legal  title  to  the  acceptance  i**  in  the 
holder.  A  court  of  e<piity  ought  not  to  restrain  the  lioldcr  by  injiMicti<m  from 
enforcing  his  legal  right,  n«ir  should  a  court  of  law  permit  the  atvcptor  to  de- 
feat  liis  acceptance  by  nii   ci|iiil  ililc  dcfcii'c. 

•  •••••■ 

"It  is  hojK'd  that  what  has  be«'n  written  may  serve  to  convin<'e  the  reader 
of  the  extensive  scope  of  the  d<wtrine  that  equity  will  not  inti-rfere  as  l>ctwecn 
two  persons  having  ixpial  efpiities,  but  will  let  the  loss  lie  where  it  has  fallen. 
It  will  certainly  be  a  Hati>4faction  to  the  writer,  if  he  has  helped  tf»  vin<licatp 
the  opinion  «»f  Lord  Manskiki.ii  in  Price  c.  Neal  from  the  false  gloss  that  has 
Wen  put  upon  it  by  his  successors." — .Ames,  "The  Doctrine  of  Price  v.  Neal,"  4 
Harvard  Ijiw  Review,  207.     And  see  Keener's  Treatise,   154  ct  atq. 


CHAP.    II.  ]    KLLIS    &    MORTOX    V.    OHIO    LIFE    INSURANCE    CO.  489 

was  signed  hy  the  judirc  and  nrnde  i)art  ol'  the  i-ccord.  The  ])laintiffs 
filed  their  petition  in  error  to  the  superior  court,  at  the  general  term 
of  the  superior  court,  October,  1854;  assigning  for  error,  that  the 
court,  at  special  term,  erred  in  rendering  said  judgment  of  nonsuit. 
The  superior  court,  at  general  term,  affirmed  the  judgment  at  special 
term.  To  reverse  this  judgment  of  allirmance,  the  present  petition 
in  error  is  filed  on  leave. 

The  facts  sufficient!}'  appear  in  the  judgment  of  the  court. ^ 

Ranney^  J.  Having  settled  the  principles  by  which  our  inquiries 
are  to  l)e  guided,  we  are  now  prepared  to  ask  the  question — Were  the 
plaintili's  properly  nonsuited  in  the  present  case?  An  answer  to 
this  question  demands  a  careful  attention  to  the  evidence  contained 
in  the  bill  of  exceptions,  and  a  settling  of  the  state  of  facts  that  it 
conduced  to  prove,  and  then  the  legal  principles  applicable  to  such  a 
state  of  facts. 

There  has  been,  and  can  be,  no  dispute  that  the  money,  for  which 
this  action  was  brought,  was  paiil  by  tlie  ])laintiffs.  and  received  by 
the  defendants,  on  a  check  for  $7,500,  purporting  to  be  drawn  upon  the 
plaintiffs  by  Evans  and  Swift,  a  firm  at  Cincinnati  engaged  in  the 
pork  packing  business,  and  payable  to  Samuel  Taylor  &  Co.,  or 
.bearer;  and  that  tbpn4HapJc-was  a  fflFf'PT'yT  of  which  the  parties  were 
nmtually  ignorant  at  the  t[me  the^  payment  was  maile.  This  check, 
with  another  for  $7,300,  purporting  to  be  drawn  by  S.  Davis  &  Co., 
on  the  Mechanics'  and  Traders'  Bank,  and  which  was  also  a  forgery, 
was  presented  in  the  early  part  of  the  day  it  bears  date,  by  a  stranger 
having  the  dress  and  appearance  of  a  drover,  and  expressing  a  desire  to 
exchange  them  for  Kentucky  money  or  gold,  to  the  teller  of  the  de- 
fendants' bank,  by  whom  they  were  taken  and  the  gold  advanced,  at 
a  discount  of  j  of  one  per  cent.  He  testified  that  "he  did  not  know 
the  standing  of  either  firm,  nor  their  signatures,  but  took  the  checks 
to  Mr.  Bishop,  the  cashier,  laid  them  on  his  desk,  and  asked  him  if  he 
should  make  the  exchange.  He  [Bishop]  said  yes.  Cannot  say 
whether  he  examined  or  knew  the  signatures.  The  checks  were  before 
him  some  three  or  four  minutes.  He  assisted  in  calculating  the 
premiums.  No  question  was  oskcd  as  fa  who  the  presenter  was.  or  as 
to  his  rifjht  to  the  cherls.  He  was  probably  in  the  bank  from  two  to 
fifteen  minutes;  should  not  have  recognized  him  again.  Tie  carried 
off  the  gold  in  saddlebags.  Botli  the  banks,  upon  which  the  checks 
were  drawn,  were  within  less  than  a  square;  there  was  nothing  to 
create  suspicion,  and  nothing  unusual  in  the  transaction." 

In  accordance  with  a  custom  of  doing  business  between  the  bank^. 
and.  to  some  extent,  with  other  banks  of  the  city,  this  check,  with 
others  drawn  upon  the  plaintiffs  and  taken  by  the  defendant,  were 

'Tlio  ('l:il)oratp  aifzumpnts  of  counsol  liuvp  been  omitted  and  only  a  part  of 
the  opinion  of  the  learned  judge  is  given. — Ed. 


4U0  ELLIS    &    MORTON'    V.    OHIO    LIFE    INSURANCE    CO.     [BOOK   II. 

pinned  together,  with  a  ticket  upon  the  top  showing  the  amount  of 
each  and  the  aggregate  amount  of  all,  and  on  the  same  day  presented 
to  tile  plaintilTs,  who  paid  the  amount  appearing  from  the  ticket,  with- 
out any  examination  of  tlie  cheeks;  it  being  the  custom,  however, 
to  examine  them  on  the  same  day,  and  return  such  as  were  found  not 
to  be  good.  This  check  was  examined,  on  the  same  day,  by  the  note 
clerk  of  the  plaintiffs,  and  charged  up  against  the  supposed  drawers. 
The  forgery  was  not  discovered  until  ten  days  afterwards,  when  the 
check  was  returned  to  tlie  defendants  and  repayment  demanded. 

For  the  purpose  of  showing  what  was  claimed  to  be  gross  negligence 
on  the  part  of  the  defendants,  the  plaintiffs  introduced  several  wit- 
nesses engaged  in  the  business  of  banking  at  Cincinnati,  who  ex- 
pressed the  opinion,  that  the  defendants,  in  the  exercise  of  proper 
diligence,  should  have  required  the  person  presenting  the  check  to 
have  drawn  the  money  himself;  or  should,  by  inquiry,  have  been  satis- 
fied of  his  right  to  do  it,  and  of  his  identity.  As  expressed  by  one  of 
them: — "It  is  the  general  custom  in  this  city,  when  a  check  is  pre- 
sented for  sale,  that  is,  when  it  is  presented  by  a  stranger  to  a  bank, 
not  the  one  upon  which  it  is  drawn,  to  make  inrjuiries  in  reference 
to  his  right  to  the  check,  and  the  identitij  of  the  person."  And  with 
a  view  of  making  it  appear  that  this  negligence  operated  directly  to 
their  prejudice,  and  induced  the  payment  of  the  check,  the  plaintiffs 
furtber  gave  evidence  tending  to  prove  their  uniform  custom  of 
making  such  inquiries,  when  a  check  of  this  character,  drawn  upon 
them,  was  presented  by  a  stranger;  and  that  there  was  "not,  generally, 
so  strict  a  scrutiny  when  checks  come  from  other  banks,  it  being  pre- 
sumed that  caution  iiad  been  already  exercised."  The  tendency  of 
this  evidence  cannot  be  mistaken.  It  ^learly  conduced  to  prove  the 
existence  of  a  general  custom  amongst  the  banks  of  Cincinnati,  re- 
quirtrrjrthi'  bank  taking «^rhrck- of  this  chnractcr,  drawn  ujion  aiiT)ther, 
from  a  stranger,  to  be  satisfied,  by  inquiry,  of  his  rlgliL-tiLilLe  cheek, 
and  of  tbe  j)erson  from  whom  it  was  receivedj  and  as  clearly  allowing 
the  bank,  upon  which  it  was  drawn,  to  rely  upon  the  j)resumi)lion  that 
such  caution  had  been  exercised,  when  the  check  was  presented 
for  payment.  If  thi.'?  custom,  in  bf)tli  its  branches,  was  established 
to  the  satisfaction  of  the  jury,  the  fair  presumpticm  arising  would  be, 
that  the  defendants  had  Ix'cn  negligent  in  failing  to  comply  with  an 
cstabli.'^lK'd  custom  of  the  business,  necessary  not  only  to  tlieir  own 
security,  but  also  to  that  of  the  bank  upon  which  the  check  was  drawn, 
and  that  the  plaintiffs,  not  being  informed  to  the  contrary.  j)aid  the 
clieck  upon  the  su|»position  tbat  the  custom  had  been  observed; 
while  it  would  be  made  absolutely  certain  that  the  intervention  of  the 
defendants  had  prevented  the  plaintiffs  from  exercising  this  pre- 
caution ;  and  nearly  so,  that  if  it  had  l)cen  exercised  by  the  defendants, 
the  check  would  not  have  been  purchased  by  thciii.  or  j»aid  by  the 
plaintiffs. 


CHAP.    II.]    ELLIS    &    MORTON    V.    OHIO    LIFE    INSURANCE    CO.  491 

We  do  not  say  that  tlie  evidence  was  sufficient  to  establish  this 
state  of  facts,  or  that  it  was  not.  It  is  enough  that  it  had  that 
tendency.  It  is  wholly  immaterial  for  present  purposes,  how  weak 
and  inconclusive  it  may  have  been,  or,  even,  that  it  was  contradicted 
by  other  evidence  given  by  the  plaintiffs.  As  was  well  said  in  the 
court  below,  "if  the  testimony  be  contradictory,  it  cannot  all  be 
admitted  to  be  true;  if  not  all  true,  judgment  must  be  exercised  in 
separating  the  true  from  the  false;  and  this  is  the  peculiar  province 
of  the  jury." 

Assuming  all  to  be  satisfactorily  proved  that  this  evidence  con- 
duced to  prove,  does  the  law  permit  a  recovery?  Upon  this  question 
we  have  bestowed  the  careful  attention  which  the  importance  of  the 
subject,  as  well  as  the  learning  and  ability  with  which  it  was  treated 
in  the  superior  court,  and  by  counsel  in  this  court,  seemed  to  de- 
mand, and  a  majority  of  the  court  are  brought  to  the  conclusion  that 
it  does. 

There  is,  certainly,  no  room  for  the  application  of  technical  or  arbi- 
trary rules,  in  determining  the  rights  of  the  parties.  Neither  the  form 
of  the  action,  nor  the  nature  of  the  subject,  permits  it.  The  action 
is  brought  for  money  had  and  received ;  and  it  lies  in  all  cases,  where 
one  has  the  money  of  another,  which  he  cannot  in  equity  and  good 
conscience  retain.  It  lies,  therefore,  for  money  paid  by  mistake,  or 
upon  a  consideration  which  has  failed;  because  in  such  case,  the  plain- 
tiff did  not  intend  to  give  his  money  to  the  defendant,  and  the  latter 
cannot  conscientiously  retain  money  for  which  he  has  given  no  equiva- 
lent. This  is  the  general  rule;  but  it  has  its  exceptions,  as  well 
settled  and  resting  upon  reasons  as  solid  and  satisfactory  as  the  rule 
itself.  Wherever  the  mistake  has  arisen  from  the  fault  or  negligence 
of  the  party  paying  the  money,  and  cannot  be  corrected  without 
j^rejudice  to  the  party  who  has  received  it,  there  can  be  no  recovery, 
and  simply  because  the  plaintiff  is  alone  in  fault ;  the  defendant  is 
under  no  obligation  to  submit  to  loss,  to  extricate  him  from  difficulty, 
and  may,  therefore,  conscientiously  retain  the  money.  The  question 
is,  does  this  case  fall  within  the  general  rule,  or  the  exception?  We 
make  the  solution  of  this  question  depend  wholly  upon  the  answer 
to  be  given  to  another:  Does  the  negligence  imputed  to  the  defend- 
ants, subject  them  to  an  action  for  the  recovery  of  the  money  paid 
upon  the  check?  Can  a  party,  upon  whom  an  established  course  of 
business  devolves  the  obligation  of  making  certain  inquiries,  before 
taking  a  check  purporting  to  be  drawn  upon  another,  in  negligent 
disregard  of  that  duty,  conscientiousJi/  retain  the  money  received 
upon  a  forged  instrument,  when  it  appears  that  such  negligence  con- 
tributed to  induce  the  payment? 

Whatever  of  doubt  might  have  been  once  entertained,  it  has  been 
long  settled,  that  a  person  giving  a  security  in  payment,  or  jirocuring 
it  to  be  discounted,  vouches  for  its  genuineness;  and  if  it  proves  to 


492  ELLIS    &    MORTON    V.    OHIO    LIFE    INSURANCE    CO.     [bOOK    IL 

be  a  forgery,  he  is  still  liable  for  the  debt,  in  the  one  ease,  or  for  a 
return  of  the  money  in  the  other.  2  Johns.  Rep.  455;  G  Mass.  Rep. 
182;  5  Taunt.  Rep.  488. 

We  admit  it  to  be  equally  well  settled,  that,  where  the  instrument 
is  drawn  upon,  or  purports  to  be  signed  by,  the  party  paying  the 
money,  to  a  holder  without  fault,  and  whose  situation  would  be 
thereby  changed,  to  his  prejudice  if  he  was  compelled  to  refund,  the 
money  cannot  bi'  recovered  back.  The  f<nindations  of  the  rule  are 
sutliciently  obvious.  The  party  is  sui)posed  to  know  his  own  hand- 
writing, in  the  one  case,  or  that  of  his  customer  or  correspondent  in 
the  other,  much  better  than  the  holder  can;  and  tiie  law.  therefore, 
allows  the  holder  to  cast  upon  him  the  entire  responsibility  of  determ- 
ining as  to  the  genuineness  of  the  instrument,  and  if  he  fails  to  dis- 
cover the  forgery,  imputes  to  him  neglifjcnce,  and,  as  between  him  and 
the  innocent  holder,  compels  him  to  suffer  the  loss.  For  still  stronger 
reascms,  the  drawee  of  a  bill  or  check,  who  has  accepted  it,  and  again 
sulfered  it  to  go  into  circulation,  is  absolutely  estopped  to  deny  the 
genuineness  of  the  drawer's  handwriting.  The  acceptance  necessarily 
involves  the  most  positive  alTirmation  that  the  instrument  is  what  it 
purports  to  be,  and  the  aecejjtor  is  not  permitted  to  withdraw  the 
assertion,  to  the  j)rejudice  of  those  who  have,  in  cons(>ciuenci'  of  it. 
given  credit  to  the  paper. 

In  all  such  cases,  either  of  acceptance  or  payment,  the  foundation 
uj)on  which  the  drawee  is  made  to  .suffer  the  loss,  is  the  imputed 
negligence  in  accepting  or  paying,  until  he  has  ascertained  the  bill  to 
be  genuine;  and,  in  ca.>*e  of  payment,  notwithstanding  lu-  has  done  it 
in  mistake,  and  parts  with  his  money  without  receiving  the  supposed 
equivalent,  and  notwithstanding  the  holder  has  ol)tained  the  money 
without  consideration,  the  former  cannot  be  relieved  from  the  con- 
sequence of  his  negligence  at  the  expense  of  the  lattcT,  and  the  latter 
may  in  e<iuity  an<l  good  conscience  retain  what  he  has  got.  Rut  this 
stern  rule  is  only  exerted  in  favor  of  a  holder  without  fa\ilt,  and  for 
a  valuable  consideration;  and  we  deem  it  e(|ually  clear,  that  he  may. 
by  hi.s  own  negligent  conduct,  jdace  hiuHelf  in  such  an  ine(piitable 
position  in  reference  to  the  drawee,  as  to  deprive  himself  of  the  bene- 
fit of  this  rule,  and  make  it  unjust  and  ine(piilable  that  he  shoidd 
keep  what  he  ha-<  obtained  by  a  mistake,  and  for  wliicli  he  has  given 
no  cfpiivaleiit. 

We  do  not  here  speak  of  lU'gligence  as  a  matter  at  large.  We  only 
intend  to  deal  with  the  ease  before  us;  and  that  only  retpiires  us  to 
say,  that  when"  the  negligence  reaches  beyond  the  Ixtlder,  and  neces- 
earlly  affects  the  drawee,  and  consists  of  an  omission  to  exorcise  some 
precaution,  either  by  the  agreement  of  the  jiarties  or  the  course  of 
business  devolved  upon  the  holder,  in  relation  to  the  genuineness  of 
the  paper,  he  cannot,  in  negligent  disregard  of  this  duty,  retain  the 
money  received  upon  a  forged  instrument.     Both  these  propositions, 


CHAP.    II.]    ELLIS    &    MOUTON    V.    OHIO    LIFE    INSURANCE    CO.  493 

we  tliink,  will  be  found  fully  sustiiined,  if  not  in  every  particular, 
by  direct  adjudications,  by  the  lixed  |)ri)i(ii)lc.s  upon  which  nearly  all 
the  cases  have  i)rocf'eded. 

The  leading  case  is  that  of  Price  v.  Xeal.  3  Burr.  K.  13.^5.  It  is  not 
very  clearly  reported,  and  has  been  the  subject  of  some  misunder- 
standing in  the  subsequent  cases.  The  action  was  brougiit  to  recover 
the  money  paid  upon  two  forged  bills  of  exchange,  drawn  upon  the 
plaintilf;  one  of  which  was  first  accepted  and  afterwards  paid,  and 
the  other  paid  upon  presentation.  Lord  Mansiii;lo  lays  some  stress 
upon  this  circumstance ;  and  he  is  very  careful  to  say,  that  the  "mis- 
fortune happened  without  the  defendant's  fault  or  neglect"  and  that 
whatever  of  nt'gligence  there  was,  was  on  the  side  of  the  plaintiff. 

Without  advancing  any  views  of  our  own,  as  the  true  ground  upon 
which  the  plaintiff  was  denied  a  recovery,  it  will  be  sufficient  to  pre- 
sent those  of  the  supreme  courts  of  Massachusetts  and  Xew  York. 
In  Young  v.  Adams.  (5  Mass.  R.  187,  Sewall,  J.,  says,  the  strong 
ground  for  the  decision,  "although  not  so  prominently  stated  by  the 
reporter,  was  because  the  plaintiff's  acceptance  and  payment  of 
these  false  bills,  considering  them  as  drawn  upon  himself,  was  his 
own  peculiar  negligence,  by  which  the  loss  had  been  incurred;  and 
therefore  it  was  not  to  be  thrown  back  upon  the  innocent  holder  of 
the  bills."  And  Ch.  J.  Kent,  in  Markle  v.  Hatfield,  2  Johns.  R. 
462,  says — "That  decision  turned  upon  the  negligence  im])utaljle  to 
the  one  party,  and  not  to  the  other." 

In  Smith  v.  Mercer,  6  Taunt.  R.  80,  the  payment  was  made  by 
the  bankers  of  the  party,  who  purported  to  have  accepted  the  bill 
payable  at  their  banking  house;  and  the  forgery  was  not  discovered 
for  a  week  afterwards.  The  court  were  of  the  opinion  that  no  distinc- 
tion was  to  be  taken  between  a  payment  by  the  bankers  of  the  acceptor, 
and  the  acceptor  himself;  and  gave  judgment  for  the  defendant.  But 
the  judges  were  not  unanimous :  Chambre,  J.,  expressing  his  dis- 
satisfaction with  the  reasoning  in  Price  v.  Neal,  thought  the  case  came 
within  the  general  rule  of  money  paid  by  mistake,  and  could  be 
recovered  back ;  while  Gibbs,  C.  J.,  being  the  only  judge,  as  Mr.  Chitty 
thinks,  who  put  the  case  upon  the  true  ground,  rested  his  judgment 
wholly  upon  the  delay  in  giving  notice,  by  which  the  defendant's 
renu'dy  against  the  indorsers  was  lost.  See  Chitty  on  Bills,  ch.  9. 
p.   4(13.    (Sth  ed.) 

In  Wilkinson  v.  Johnson,  3  B.  &  C.  435.  the  bill  was  paid  for  the 
honor  of  an  indorser,  whose  name  was  forged  :  but  the  forgery  was 
discovered  on  the  same  day,  and  notice  being  given,  the  money  was 
recovered  back.  Tjord  Textehdex.  after  examining  the  previous 
cases,  and  stating  that  a  call  upon  the  acceptor  for  payment  wa< 
altogether  a  matter  of  course,  while  a  call  upon  a  person  to  pay  for 
the  honor  of  an  indorser,  was  unusual,  and  necessarily  imports  Wvr' 
the  name  of  the  correspondent  for  whose  honor  the  payment  is  asked. 


494  ELLIS    it    MORTON    V.    OHIO    LIFK    INSURANCE    CO.     [bOOK    II. 

is  actually  on  the  bill,  proceeds  to  say: — "The  person  thus  called 
upon  ought  certainly  to  satisfy  himself  that  the  name  of  his  corres- 
pondent is  really  on  the  bill;  but  still  his  attention  may  be  reasonably 
lessened  by  the  assertion  that  the  call  makes  upon  him  in  fact,  tliougli 
no  assertion  may  be  made  in  words.  And  the  fault,  if  ho  pays  on  a 
forged  signature,  is  not  wholly  and  entirely  his  own,  but  begins  at 
least  with  the  person  who  thus  calls  upon  him.  And  though,  where 
all  the  negligence  is  on  one  side,  it  may  perhaps  be  unfit  to  incpiire 
into  the  (piantum,  yet  where  there  is  any  fault  in  the  other  party,  and 
that  other  party  cannot  be  said  to  be  wholly  innocent,  he  ought  not, 
in  our  opinion,  to  profit  by  the  mistake  into  which  he  may,  by  his  own 
prior  mistake,  have  led  the  other;  at  least,  if  the  mistake  is  dis- 
covered before  any  alteration  in  the  situation  of  any  of  the  other 
parties,  that  is,  whilst  the  remedies  of  all  the  parties  entitled  to 
remedy  are  left  entire,  and  no  one  is  discharged  by  laches."  And  he 
adds:  "We  think  the  payment  in  this  case,  was  a  payment  by  mistake, 
to  a  person  not  wholly  free  from  blame,  and  who  ought  not,  therefore, 
to  retain  the  money." 

Now,  as  it  is  undeniably  clear,  that  a  ])ayment  supra  protest,  either 
for  the  honor  of  a  drawer  or  indorser,  places  the  party  paying  in  the 
same  situation  as  payment  by  the  drawee,  (the  party  for  whom  pay- 
ment is  made  being  suj)posed  to  be  his  corresiJondent,  with  whose 
handwriting  he  is  acquainted),  it  is  evident  that  this  decision  was 
grounded  upon  the  negligence  of  the  holder,  in  not  properly  in- 
forming himself  as  to  the  genuineness  of  the  signature,  before  pre- 
senting the  bill  to  the  correspondent  of  the  indorser  for  jjayment ;  and 
the  case  is  very  strong  to  show  with  what  scrupulous  fidelity  every 
duty  devolved  upon  the  holder  must  be  discharged,  to  entitle  him  to 
retain  the  money  received  Uj)on  a  forgery.' 

I  shall  refer  to  but  one  other  English  case,  Cocks  v.  Masterman, 
I>  H.  (S:  C.  902.  In  that  case,  as  in  Smith  v.  Mercer,  the  payment 
was  made  by  the  bankers  of  a  supposed  acceptor,  aiul  the  forgery  was 
discovered  and  notice  given  the  next  day.-     As  there  were  indorser- 

"'Thcro  JH  nothin;;  in  the  tliHtinction  made  l>y  iho  (•(iiirt  in  this  case  (Wilkin- 
son r.  .Johnston)  aw  tc  tin-  diircrfncj'  liotwocn  payment  by  payor  for  honor, 
and  paj'nicnt  by  ordinary  drawro."      ^lrt.   note  of  Mr.  Amos. 

When'  the  holder  of  a  note  with  a  p-nuine  endorseinont  of  tlie  payee,  known 
to  the  lioliler  as  an  iu-<-rnniiio(hition  endorser,  aecepted  in  disdiar^'e  and  pay- 
ment of  tliat  note,  when  it  he<'anie  due.  a  second  note  made  in  tlie  same  way 
between  the  Hanic  parties,  but  on  wliicli  the  maker  luid  forced  tlie  name  of  the 
payee,  he  (the  holder)  was  perniittetl  to  ro<'over  af^inHt  the  payee  on  the  first 
endorsement.     Allen  r.  Sharpe  (1H71)   :{7  Ind.  07. 

In  Stephenson  v.  Mount  (1K«17)  !!•  I.a.  .\nn.  205,  the  payr)r  for  honor,  of  a 
toTfif^l  <lraft,  was  nfit  allowed  to  recfiver. 

See  Norton,  Hills  ami  Notes,  9  72;  Bigelow,  HillH,  Notes  and  ("heqiies,  (11 
et  »cq. —  Ko. 

*"In  respect  to  counterfeit  bank  notes,  it  is  everywhere  conceded  that  return 


CHAP.    II.]    ELLIS    &    MORTON    V.    OHIO    LIFE    IXSURANCE    CO.  495 

upon  the  paper,  the  court  held  the  notice  too  late.  While  it  is  ad- 
mitted that  the  holder  had  notice  in  time  to  have  charged  the 
other  parties  upon 'the  bill,  it  is  nevertheless  said,  that  he  had  the 
right,  if  he  saw  lit,  to  take  steps  against  them  on  the  day  it  matured, 
and  that  he  ought  not  to  be  deprived  of  this  right  by  the  negligence  of 
the  party  making  payment. 

Amongst  the  American  cases,  those  of  The  Gloucester  Bank  v.  The 
Salem  Bank,  17  Mass.  R.  33,  and  Bank  of  the  United  States  v.  The 
Bank  of  Georgia,  10  Wheat.  R.  333,  were  payments  made  upon 
forged  notes,  purporting  to  have  been  issued  by  the  banks  making 
payment.  In  the  one  case,  a  delay  of  fifteen  days,  and  in  the  other 
of  nineteen,  had  occurred  in  giving  notice  of  the  forgery  to  the  banks 
receiving  the  money ;  and.  in  each,  they  were  held  entitled  to  retain  it. 

There  can  be  no  doubt  of  the  correctness  of  the  decisions.  In 
neither  case  was  the  party  receiving  the  money  implicated  in  any  fault ; 
and  while  the  decisions  are  based  upon  the  analogy  furnished  Ijy  the 
rule,  which  fixes  the  rights  of  the  drawee  or  acceptor  of  a  bill,  it  is 
very  successfully  shown  that,  in  reason,  the  rule  has  a  much  stronger 
application  to  the  redemption  of  bank  notes,  growing  out  of  the  fact, 
that  they  purport  to  be  the  party's  own  paper,  circulating  as  money, 
and  therefore  dilficult  to  trace  back,  and  from  the  greater  facilities 
that  a  bank  has  to  detect  forgeries,  by  the  use  of  registers  and  private 
marks. 

In  the  first  of  these  cases,  Ch.  J.  Parker  commences  his  able  opin- 
ion by  laying  down  the  general  principle  applicable  to  that  and  like 

must  be  made  promptly.  In  Thomas  v.  Todd,  6  Hill,  341,  something  less  than 
two  months  was  held  too  long.  In  Raymond  v.  Baar,  13  S.  &  R.  319,  a  delay 
of  si.K  months  was  pronounced  gross  negligence.  In  the  Gloucester  Bank  c. 
the  Salem  Bank,  17,  Mass.  32,  a  failure  for  fifteen  days  to  examine  a  bundle 
of  notes  delivered  to  the  plaintiff's  cashier  for  exchange,  was  held  to  defeat  the 
action.  True,  bank  notes  are  created  for  currency,  and  the  holder,  as  he  scru- 
tinizes them  less,  ought  to  repossess  them  soon  to  be  able  to  start  them  on 
their  way  back.  But  this  ground  has  not  been  found  broad  enough  for  giving 
them  a  peculiar  place.  In  the  case  of  a  bill  of  exchange,  the  acceptor  who  pays 
and  keeps  his  mouth  shut  for  any  time  cannot  recover.  Why?  Not  so  much 
that  he,  of  all  others,  ought  to  have  known  who  was  drawing  on  him,  as  that 
his  delay  lets  the  intervening  parties  off  by  preventing  the  holder  from  notify- 
ing them  in  time;  and  therefore  in  the  leading  case  of  Price  v.  Xeal.  3  Burr. 
13o4.  Lord  Mansfield  complained  justly  that  the  acceptor  finds  out  the  forgery 
when  ••the  forger  comes  to  be  hanged."  By  the  later  decisions  the  law  seems 
to  be  that  if  notice  of  the  forgery  be  given  on  the  very  day  on  which  a  bill  of 
exchange  is  paid,  the  acceptor  may  recover  the  money.  3  Barn.  &  Cress,  428; 
0  Id.  902;  4  M.  &  Ry.  676.  At  some  time,  however,  and  in  some  way,  there 
must  be  notice,  and  an  offer  to  return  before  recovery  of  pajnnent  on  any  coun- 
terfeit instrument,  note,  bill,  or  bank  note,  paid  or  purchased.  Coolidge  r. 
Bingham,  1  Mot.  ")47.  In  the  Bank  of  I".  S.  r.  Bank  of  Georgia,  10  Wheaton 
333,  Judge  Stoby's  Review  of  the  authoritie-*  up  to  lS2o  was  very  unsuccessful. 


49G  ELLIS    i    MOUTUX    r.    OHIO    LIFK    1  N'SritAXC'E    CO.     [BOOK    II. 

cases.  He  says:  ''In  all  such  (.•aso.-.  the  just  and  sound  jirinc-ipk'  of  de- 
cision has  been,  that  if  tiie  loss  ran  \)v  traied  to  the  fault  or  ncijUijcnce 
of  either  party,  it  shall  be  fixed  u})on  him.  Generally,  where  no  fault 
or  ne«?ligenee  is  imputable,  the  loss  has  been  suffered  to  remain  where 
the  eour>e  of  business  has  plaeed  it."  And  he  very  reasonably  con- 
cludes, that  "it  would  seem  to  be  a  i)rincii)le  of  natural  justice,  that 
where  a  loss  has  happened  he,  throuj^h  whose  nu-ans  it  haiij)ened, 
should  sustain  it,  althoujxh  innocent,  rather  than  he  who  is  not  only 
innocent,  but  wliulli/  without  iiiipulation  of  neyliyence." 

In  Levy  v.  The  Bank  of  the  Tnited  States,  4  Dall.  K.  'i'M,  and 
Bank  of  St.  Albans  v.  Farmers'  and  Mechanics'  Bank,  10  Verm.  R. 
141,  the  payment  was  made  upon  a  check,  purporting  to  be  drawn  by- 
a  depositor  upon  the  plaintiifs.  In  the  first  case,  the  fortjery  was  de- 
tected and  notice  ^nvcn  on  the  same  day,  and  in  the  other,  not  until 
after  the  expiration  of  two  months;  and  in  Imth.  the  right  to  retain 
the  money  was  sustained.  While  the  fi"st  case  is  certainly  question- 
able, the  last  may  have  Invn  correctly  decided. 

The  Canal  Bank  v.  The  Bank  of  Albany,  1  Hill,  287,  was  the  case 
of  a  forged  indorsement  of  the  payee,  and  the  money  |>aid  by  the 
drawees  was  recovered  l)a(k ;  although  the  forgery  was  not  discovered 
for  two  months  after  the  i)ayment,  and  tlie  remt'dy  against  other  in- 
dor.sers  was  lost. 

We  do  not  cite  this  case  as  bearing  directly  upon  the  (piestion  under 
discussion,  as  it  is  well  settled,  that  ))ayment  by  the  drawee  does  not  in- 
volve an  admission  of  the  genuineness  of  the  signature  of  any  indorser* ; 

if  it  can  be  doubted  tbat  the  time  l)i)tli  for  the  noticf  jiikI  ri'tiini  is  a  reason- 
nbb-  time."— Rich  r.  Kelly  (1858)  W  I'a.  SI.  f)!'?.  ;"):!();  iind  sec  n«.te  to  Hull  v. 
Bank,  infra. — Ki). 

•See  Bobbett  v.  Pinkett  (1870)  1  Kx.  Div.  .{(is ;  Indiana  National  Hank  r. 
Hattrtclaw  (1884)  J»8  Ind.  85;  Buckley  r.  Second  National  Bank  (1872)  35 
N.  J.  400;  Kleinwort,  Sons  &  Co.  r.  Coniptoir  National,  etc.  (18»41  2  Q.  B. 
l.J7;   Fine  .\rt  Society  r.  I'nion  Bank    (188r.)    17  (.'.  B.  70.".. 

".\nalanous  to  the  forf,'ed  endoi»enicnl  cases  are  those  where  tlie  defendant 
buys,  under  a  forf,'ed  power  of  attorney,  a  st(K-k  certilicate.  which  he  surrenders 
to  the  company  and  takes  a  new  certificate  in  his  own  name.  The  tith"  of  the 
true  owner  is  not  afTecte<l.  The  defendant  held  the  orij;inal  certitieate  for  the 
benefit  of  the  true  owner.  an<l  therefore  he  holds  the  new  one  as  »  constructive 
trustee  for  the  true  owner,  :ind  the  cojnpany  wrnild  lie  bonn<l  to  is>u<'  a  fresh 
certificate  to  the  latter,  but  wouhl  tlu-n,  of  course,  be  eiititlcil  to  have  the 
second  certificate  delivered  uji.  The  loss  would  fall  on  the  itniocent  i)urchaser. 
Metropolitan  Saving's  Bank  r.  Mayor  (1884)  tl.J  Md.  (i ;  Sinnn  r.  .Xn^'loAmer- 
ican  T.!ci.'ra|di  Co.  (  187»)  L.  U.  5,  ().  B.  0.  1H8.  The  <  ase  of  Boston,  etc.,  R.  R. 
Co.  r.  Richardson  (188.'{)  135  Mass.  273,  went  loo  far  in  char^Mii^c  the  innocent 
purchaser  as  a  warrantor.  If.  apiin.  the  innocent  purchaser  had  paid  his 
money  on  the  strength  of  the  new  certificate,  the  <c(m|)any  would  be  estopped, 
ns  in  Brown,  I^incaster  &  Co.  r.  Howard  Fire  Ins.  Co.  ( 1875)  42  Md.  384.  Ilam- 
bleton  V.  R.  R.  Co.   (187<»)   44  Md.  551;  Metropolitan  SnvingH  Bank  v.  Mayor, 


CHAP.    II.]     ELLIS    &    MOKTOX    C.    OHIO    LIFE    IXSUUAXCE    CO.  497 

and  the  rule  has  even  been  carried  so  far,  a.s  to  he  apijlied  to  the  case 
of  a  hill  payable  to  the  order  of  the  drawer,  and  purporting  to  he 
indorsed  hy  him.  Story  on  Bills,  sec.  41^.  But  the  case  is  valuable 
for  the  general  rule  elicited  by  the  court,  upon  a  full  review  of  all 
the  cases  we  have  cited,  that  "money  paid  by  one  party  to  another 
through  a  mutual  mistake  of  facts,  in  respect  to  which  both  were 
equally  bound  to  inquire,  may  be  recovered  back;"  and  that  when 
money  is  thus  paid  upon  a  forgery,  it  is  sulhcient  to  give  notice, 
without  unreasonable  delay,  after  the  forgery  is  discovered. 

In  the  case  of  the  Bank  of  Commerce  v.  The  Union  Bank,  3  Com. 
R.  230,  the  forgery  consisted  in  increasing  the  amount  by  altering  the 
body  of  the  ])ill ;  and  the  drawees  recovered  back  the  money,^  although 
a  notice  was  given  too  late  to  enable  the  holder  to  charge  the  in- 
dorsers.  Judge  Ruggles,  in  delivering  the  opinion  of  the  court,  after 
stating  that  the  rule  which  casts  the  loss  upon  the  drawee,  when  the 
drawer's  name  is  forged,  "is  founded  on  the  supposed  negligence  of 
the  draw'ee  in  failing,  by  an  examination  of  the  signature,  when  the 
bill  is  presented,  to  detect  the  forgery  and  refuse  payment ;"  and 
that  the  rule  did  not  apply  to  an  alteration  in  the  body  of  the  bill, 
which  was  not  presumed  to  be  in  a  handwriting  known  to  him, 
arrives  at  the  conclusion,  that  "the  greater  negligence  in  a  case  of 
this  kind  is  chargeable  on  the  party  who  received  the  bill  from  the 
perpetrator  of  the  forgery,"  and  that,  "if  reasonable  diligence  is 
exercised  in  giving  notice  after  the  forgery  comes  to  light,  it  is  all 
that  any  of  the  parties  can  require." 

In  Goddard  v.  The  Merchants'  Bank,  4  Com.  R.  147,  the  signature 
of  the  drawer  was  forged,  and  the  bill  was  paid  the  day  after  it  was 
protested  by  the  plaintiff,  for  the  honor  of  the  drawer.  The  bill  pur- 
ported to  have  been  drawn  by  a  bank  in  Ohio,  upon  the  American 
Exchange  Bank  in  Xew  York,  and  was  indorsed  by  the  person  who 

supra  ;  Siiiim  v.  Anglo-Am.  Tile  Co.,  supra.  Boston,  etc.,  R.  R.  Co.  r.  Richard- 
son, supni.  Vi.  Bishop  v.  Balkis  Consolidated  Co.  (1800)  25  Q.  B.  D.  77." 
Ms.  note  of  Mr.  Ames  to  Canal  Bank  v.  Bank  of  Albany. — Ed. 

'See  Merchants'  Bank  r.  Exchanpie  Bank  (1840)  16  La.  457.  Where  a  teller 
certified  a  raised  check,  sayinj,'  it  was  rijrlit  '"in  every  particular,"  the  bank  was 
permitted  to  recover.  Security  Bank  /•.  National  Bank  (1876)  67  X.  Y.  458; 
followed  in  Clews  ct  al.  r.  Bank  of  New  York  (1882)  89  N.  Y.  418.  But  the 
latter  was  distinguished  and  restricted  in  (Mews  et  al.  v.  Bank  of  New  York 
(1887)  105  N.  Y.  .S98,  scwbtc,  by  refiisinjr  a  recovery  if  by  custom  the  teller 
was  in  such  cases  piven  power  to  bind  absolutely.  In  Parke  r.  Roser  (lS7fl) 
67  Ind.  500,  the  court  stated  that  the  certification  of  a  cheek  by  a  bank  amounts 
only  to  an  afjreement  that  the  sijrnature  of  the  drawer  is  jjenuine.  and  that  he 
has  sufficient  funds  to  ircit  it.  Accord.  Irvinp  Bank  v.  Wetherald  (1867)  36 
N.  Y.  .'^:15.  Tn  r.  S.  National  Bank  v.  National  Park  Bank  (1891)  U  N.  Y. 
Suj)]i.  411.  412.  it  is  said  that  "in  order  to  absolve  an  apent  who  is  simply  an 
agent  for  collection  he  must  actually  part  with  the  money;  he  must  pay  over 


498  ELLIS  i  MORTON    V.  OHIO  LIFE  INSURANCE  CO.       [BOOK    II. 

forged  it  to  the  Bank  of  Rutland,  Vt.,  by  which  it  was  transmitted  to 
the  defendants  for  collection.  In  consequence  of  the  absence  of  the 
notary,  in  who.-e  hands  it  was  placed,  from  his  office,  the  plaintiff  did 
not  see  the  bill  at  the  time  he  made  the  payment,  but  left  word  to 
have  it  sent  to  his  place  of  business.  On  seeing  it  the  next  day,  he 
pronounced  it  a  forgery  and  denuinded  back  the  money.  The  court 
held  him  entitled  to  recover.^  They  admit  that  he  occupied  the  same 
position  as  the  drawee  would;  but  as  he  paid  the  bill  without  an 
opportunity  of  judging  whether  it  was  signed  by  his  correspondents 
or  not,  and  upon  the  representation  of  the  holders  that  they  had  such 
a  bill,  that  he  could  not  be  held  to  have  admitted  the  genuineness  of 
the  signature.  And,  although  the  forgery  was  discovered  too  late  to 
give  notice  of  protest,  they  held  that  no  such  notice  was  necessary,  as 
the  defendants  had  the  bill  only  for  collection  and  needed  no  recourse, 
and  the  payee  who  forged  it  was  liable  to  the  owners  without  notice. 
We  have  thus  particularly  referred  to  every  important  case,  in  Eng- 
land and  the  United  States,  hanng  a  direct  reference  to  the  subject 
under  examination,  and  to  the  grounds  upon  which  these  decisions 
have  been  made.  It  is  readily  admitted,  that  no  one  of  them  is,  in 
all  respects,  like  the  present.  The  governing  principles  by  which  these 
cases  were  ruled,  rather  than  precise  identity  of  circumstances,  must 
furnish  a  guide  for  us.  Several  questions  will  readily  suggest  them- 
selves, which  we  do  not  consider  necessarily  involved  in  the  decision 
of  this  case.  Amongst  these  is  the  question,  whether,  in  cases  prop- 
erly within  the  rule,  of  payment  by  the  drawee  of  a  bill  or  other 
party  occupying  a  like  position,  the  payment  becomes  absolute  as  soon 
as  made;  or  whether  a  discovery  of  the  forgery,  and  notice  given  in 
time  to  charge  tlie  real  ])arties  upon  it,  will  entitle  him  to  a  return 
of  the  money?  The  cases  cited  from  the  Massachusetts  and  Wheaton's 
Reports,  pretty  .strongly  imply  that,  in  the  case  of  bank  notes,  the 
payment  is  absolute;  and  Mr.  Justice  Story,  in  his  Treatise  on  Bills, 
is  evidently  of  the  opinion,  that  the  same  rule  is  applicable  to  the 

the  proceedH  to  h'm  principni.  It  is  not  sunicicnt  to  credit  the  same  in  ac- 
count," citing  Bank  of  Conmierce  r.  Union  Bank  (isr)0)  3  N.  Y.  2.30;  National 
Park  Bank  v.  Seaboard  Bank  (1880)  114  N.  Y.  28. 

See  elaborate  note,  with  citations  of  authorities,  17  Am.  St.  Rep.  800. — En. 

'"If  tliis  court  hold  the  rulin;;  of  that  case   [(Joddard   r.  Merchants'  Bank, 
supra]   correct  .  the  appellant  here  must  recover,  as  the  case  there 

reported  seems  to  l)e  entirely  anala(.'ous  to  the  one  at  bar.  But  with  the  hiph- 
c«t  difference  to  the  opinion  of  that  court,  we  think  its  ruling  in  that  cane 
cann«)t  he  mistaincd  upfm  principle,  nor  by  the  authorities  in  analajjous  cases. 
.  .  .  The  premises  asmuncd  nj>pcar  to  be  unsdund,  and  the  conclusions 
drawn  from  them  cannrtt  therefore  be  sustained."  Bernheimer  v.  Marshall  & 
f'o.  (18.-|8)  2  Minn.  7H.  See  also  contra  Leather  v.  Simpson  (1871)  L.  R.  11 
Equity  'MH.  .Jolinston  r.  rommercial  Bank  (1885)  27  W.  Va.  34.3— Printed 
po.st. — Ed. 


CHAP.    II.]    ELLIS   &   MORTON   V.   OHIO   LIFE   INSURANCE   CO.  499 

payment  of  bills  and  cheeks.  For  myself,  I  must  be  permitted  to 
say,  that  I  can  see  very  little  foundation  in  principle  for  this  opinion. 
The  ground  upon  which  the  drawee  is  denied  the  right  to  correct  the 
mistake  originating  in  his  own  negligence,  is  the  prejudice  arising  to 
the  holder  from  making  payment  instead  of  suffering  the  paper  to  be 
protested.  1  do  not  say  this  prejudice  must  be  athrmatively  proved; 
the  law  may,  in  many  cases,  presume  it.  But  where  the  only  prejudice 
which  the  party  could  sustain  would  be  the  loss  of  remedies  against 
other  parties,  and  when  the  law  by  its  own  fixed  rules  determines 
that  those  remedies  remain  unimpaired,  I  think  no  such  presumption 
can  arise.  And  such  is  not  only  the  opinion  of  Mr.  Chitty,  but  he 
thinks  it  the  fair  result  of  the  modern  English  cases.  After  alluding 
to  the  grounds  of  the  contrary  opinion,  he  says:  "But,  on  the  other 
hand,  it  may  be  observed,  that  the  holder  who  obtained  payment, 
cannot  be  considered  as  having  altogether  shown  sufficient  circumspec- 
tion; he  might,  before  he  discounted  or  received  the  instrument  in 
payment,  have  made  more  inquiries  as  to  the  signatures  and  genuine- 
ness of  the  instrument,  even  of  the  drawer  or  indorsers  themselves; 
and  if  he  thought  fit  to  rely  on  the  bare  representation  of  the  party 
from  whom  he  took  it,  there  is  no  reason  that  he  should  profit  by  the 
accidental  payment,  when  the  loss  had  already  attached  upon 
himself,  and  why  he  should  be  allowed  to  retain  the  money,  when, 
by  an  immediate  notice  of  the  forgery,  he  is  enabled  to  proceed  against 
all  other  parties  precisely  the  same  as  if  the  payment  had  not  been 
made;  and,  consequently,  the  payment  to  him  has  not  in  the  least 
altered  his  situation,  or  occasioned  any  delay  or  prejudice.  It  seems, 
that  of  late,  upon  questions  of  this  nature,  these  latter  considerations 
have  influenced  the  court  in  determining,  whether  or  not  the  money 
shall  be  recoverable  back."  To  this  may  be  added,  the  repeatedly 
expressed  opinion  of  the  courts  of  New  York. 

\Ye  pass  without  any  remark,  or  the  expression  of  any  opinion,  the 
claim  of  the  plaintiffs,  that,  as  the  defendants  were  confessedly 
liable,  under  the  custom,  to  return  the  money  for  one  day,  as  there  were 
no  parties  upon  the  paper  to  be  made  liable  by  notice  of  nonpayment, 
and  as  the  money  was  irrecoverably  gone  before  the  check  was  pre- 
sented, unless  recovered  from  the  forger,  whoso  liability  still  con- 
tinues, the  failure  to  give  notice  until  the  forgery  was  discovered, 
did  not,  in  presumption  of  law,  prejudice  the  defendants,  and  that  it 
could  only  operate  against  the  plaintiffs  when  it  was  shown  that  actual 
loss  ensued :  and.  for  the  purposes  of  the  case,  we  yield  to  the  defend- 
ants the  position,  that,  after  the  expiration  of  that  day,  and  after 
the  plaintiffs  had  the  opportunity  to  examine  the  signature,  they 
stood  upon  the  same  ground  as  though  they  had  paid  on  sight  of  the 
check.  We  do  not  examine  these  projiositions,  because  we  tliink 
the  case  now  depends  upon  much  more  obvious  considerations. 

Recurring   again   to   the   fact,   that    the   plaintiffs   gave   evidence 


500  ELLIS    4    MOHTOX    V.    OHIO    LIFK    INSLUANCE    CO.     [BOOK    II. 

tending  to  establish  a  course  of  business,  which  reijuiivd  the  defeud- 
ants  to  take  tlie  first  precautionary  step  for  the  detection  of  the 
forgery,  wliich  tliey  wholly  omitted  to  do,  we  proceed  to  apply  the 
principles,  deducible  from  the  cases  referred  to,  to  that  attitude  of 
the  controversy.  Viewed  in  that  light,  the  case  is  most  clearly  within 
the  principle  upon  which  Wilkinson  i*.  Johnson  was  decided.  In  that 
case,  in  consequence  of  the  relation  of  the  parties,  it  became  the 
duty  of  the  holder  to  exercise  active  diligence  to  ascertain  the  genuine- 
ness of  the  bill.  In  this  case,  a  like  obligation  arose  from  the  course  of 
business  i)etw(.'en  the  parties.  In  this  case,  as  in  that,  the  attention 
of  the  plaintitfs  might  be  "reasonably  lessened,"  under  the  supposition 
that  this  obligation  had  been  regarded.  And  while  it  is  true,  here  as 
there,  that  the  plaintiffs  ought  to  have  satisfied  themselves  of  the 
genuineness  of  the  check  before  making  payment,  yet  the  fault  "was 
not  wholly  and  entirely  their  own,  but  began,  at  least,"  with  the 
defendants;  and  the  payment  was  made,  not  only  "to  a  person  not 
wholly  free  from  blame,"  but  to  one  greviously  in  fault. 

(^uite  as  clearly  is  it  within  the  rule  of  Chief  Justice  Parker,  re- 
quiring the  loss  to  fall  upon  the  party  to  whose  "fault  or  negligence" 
it  can  be  traced,  and  that  of  the  supreme  court  of  New  York,  affirm- 
ing the  general  proj)osition,  that  where  the  jiarties  are  equally  inno- 
cent, or  e({ually  in  fault,  and  money  is  paid  u|)()n  a  mutual  mistake 
of  facts,  "in  respect  to  which  both  were  equally  bound  to  inquire," 
it  niJiy  be  recovered  back.  In  this  case,  there  is  every  reason  to  be- 
lieve, that  if  the  defendants  had  required  the  person  presenting  the 
check  to  show  who  he  was,  he  would  have  declined  tiie  ordeal,  and 
it  would  not  have  been  bought  or  paid.  The  loss  may,  therefore, 
be  traced  directly  to  their  negligence.  But  whether  this  would  have 
prevented  the  fraud  or  not,  it  is  enough  that  both  ])arti('s  were  bound 
to  inquire,  and,  allowing  both  to  be  in  fault,  the  result  is  precisely  the 
same.  The  case  of  Goddard  v.  The  Merchants'  Rank,  is  full  to  the 
purpose;  that,  in  order  to  bring  the  drawee  within  the  exception  to  the 
rule,  which  allows  money  paid  under  a  mistake  of  facts  to  be  re- 
covered back,  the  whole  responsibility  f)f  investigating  must  be  cast 
upon  him  by  the  holder,  and,  as  between  them,  he  must  be  left  in  pos- 
session of  every  effective  means  of  pro«jecuting  the  in<|uiry.  If  the 
holder  iloc-;  not  see  fit  to  recpiire  this,  or  takes  any  part  of  the  duty 
upon  himself,  or  deprives  the  drawee  of  any  of  these  means  of  informa- 
tion, the  ease,  in  the  language  of  C  J.  Hudnsov.  "is  out  of  the  excep- 
tion, and  within  the  general  rule."  .Viid  in  all  cases  within  the  gen- 
eral rule,  all  the  Xew  York  cases  allirm  it  is  sulhcient  to  give  notice 
when   the   forgery   is  discovered. 

To  entitle  the  holder  to  retain  money  obtained  by  mistake,  upon 
a  forged  instrument,  he  must  occu|)y  the  vantage  ground,  by  putting 
the  drawee  alone  in  the  wrong;  and  he  must  be  able  trulhftilly  to 
a.-«ert,  that  he  put  the  whole  res|)onsibility  ujjon  the  drawee,  and  relied 


CHAP.    II.]    ELLIS    &    MOIJTON    V.    OHIO    LIFE    INSURANCE    CO,  501 

upon  him  to  decide,  and  tliat  tlie  mistake  arising  from  his  negligence, 
cannot  now  be  corrected  without  placing  the  holder  in  a  worse  position 
than  though  payment  had  been  refused.  If  the  holder  cannot  say 
this,  and,  especially,  if  the  failure  to  detect  the  forgery,  and  con- 
sequent loss,  can  be  traced  to  his  own  disregard  of  duty,  in  negligently 
omitting  to  exercise  some  precaution  which  he  had  undertaken  to 
perform,  he  fails  to  establish  a  superior  equity  to  the  money,  and 
cannot  with  a  good  conscience  retain  it.  To  allow  him  to  do  so, 
would  be  to  permit  him  to  take  advantage  of  his  own  wrong,  and  to 
pervert  a  rule,  designed  for  his  protection  against  the  negligence  of 
the  drawee,  into  one  for  doing  injustice  to  him. 

Nor  is  it  anything  remarkable  or  unusual  that  such  an  obligation 
should  arise,  from  a  settled  course  of  business  between  the  parties, 
or  be  established  by  the  proof  of  a  custom ;  or  that  the  holder  should, 
for  his  negligent  failure  to  regard  it,  be  deprived  of  rights  which 
he  would  otherwise  be  entitled  to  demand.  Xo  court  has  been  more 
reluctant  than  this  to  allow  local  customs  to  interfere  with  the  gen- 
eral principles  of  law  ;^  but  to  a  certain  extent,  and  within  certain 
limits,  it  becomes  absolutely  necessary  to  enforce  them,  or  to  disre- 
gard the  implied  conditions  and  understandings  upon  which  parties 
have  dealt.  To  allow  them  to  operate  against  third  persons,  who 
cannot  be  shown  to  have  had  any  knowledge  of  their  existence,  is 
one  thing;  and  to  hold  the  immediate  parties  to  the  controversy, 
bound  by  a  course  of  business  upon  which  they  have  uniformly  acted, 
or  one  embarked  in  a  particular  business,  at  a  place  where  it  has  been 
found  necessary  to  its  safe  or  convenient  prosecution,  that  a  general 
custom  should  be  observed,  under  obligations  to  conform  to  it,  is 
quite  another.  Every  one  engaged  in  a  business,  undertakes  to  bring 
to  it  a  competent  knowledge  of  its  rules  and  principles;  and  those 
who  deal  with  him,  have  a  right  to  rely  upon  his  having  regarded 
them. 

The  custom  which  the  plaintiff  sought  to  establish,  seems  to  have 
been  one  of  the  most  reasonable  character.  It  is  a  great  error  to  sup- 
pose, that  the  drawee  of  a  bill  or  check  is  bound  to  rely  alone  on 
his  knowledge  of  the  handwriting  of  his  customer  or  correspondent. 
The  testimony  in  the  case,  as  well  as  every  day's  experience,  shows  this 
alone  to  be  an  insufficient  security,  when  dealing  with  strangers  and 
in  large  amounts,  against  the  ingenuity  with  which  forgeries  are 
now  committed.  The  next  most  effective  precaution,  is  that  of  requir- 
ing the  liolder  to  furnish  some  reliable  information  of  himself, 
and  of  his  right  to  the  paper.  But  when  another  bank  intervenes 
and  takes  the  check,  this  cannot  be  resorted  to  by  the  drawee.  As 
between  the  banks,  therefore,  the  observance  of  the  custom  becomes 
a  matter  of  mutual  protection,  and  saves  to  the  drawee  the  benefit  of 
this  precaution.  While  the  bank  taking  the  check,  by  its  exercise,  is 
consulting  its  own  security,  as  well  as  that  of  the  bank  upon  which 


502  ELLIS   1    MOKTOX    V.    OHIO    LIFE    INSURANCE   CO.    [BOOK   II. 

it  purports  to  he  drawn,  it  gets  a  full  ivmuneration  for  its  care,  in 
the  reciprocity  atrorded  in  relation  to  checks  drawn  upon  itself,  and 
taken  in  like  manner. 

When  the  defendants  purchased  this  check,  they  knew  full  well 
that  it  deprived  the  plaintiffs  of  the  ability  to  make  this  part  of  the 
investigation,  and  that  it  would  be  paid  to  them  without  any  examin- 
ation whatever;  and,  if  the  custom  really  exists,  they  nmst  have  known 
equally  well  that,  in  afterwards  passing  upon  the  genuineness  of  the 
paper,  the  plaintiffs  would  have  a  right  to  rely,  as  an  important  ele- 
ment in  forming  a  conclusion,  upon  the  supposition  that  the  defend- 
ants had  made  the  investigation,  and  were  satisfied  with  the  result. 
And,  while  it  may  i)e  very  true,  that  they  did  not  warrant  the  genuine- 
ness of  the  checks,  in  the  package  which  they  presented  for  payment ; 
yet,  in  the  event  supposed,  they  did  what  was  equivalent  to  affirming — 
that  they  had  checks  for  the  amount  they  asked,  received  from  per- 
sons either  known  to  them,  or  of  whose  identity  and  honesty  they 
were  satisfactorily  informed. 

But  the  short  answer  to  all  this,  made  b}(»counsel  for  the  defend- 
ants, and  adopted  in  the  superior  court,  is,  that  negligence  alone, 
however  gross,  and  however  injurious  to  the  plaintiffs,  cannot  affect 
the  defi-ndants;  that  unless  they  "have  been  proved  to  be  complicated 
with  the  fnmd  by  which  the  plaintiffs  have  suffered,  they  cannot  l)e 
held  to  refund  the  amount  that  has  been  paid  to  them."  And  they 
very  correctly  say,  that  there  was  no  proof  of  any  such  fraud  or 
complicity  in  the  forgery.  This  position  is  grounded  upon  the  author- 
ity of  several  recent  English  decisions,  in  relation  to  the  proof  neces- 
sary to  impeach  the  title  of  a  holder  of  negotiable  paper,  in  conflict 
with  many  earlier  cases  in  that  country. 

Gill  r.  Cubitt,  3  B.  &  C.  400,  was  the  case  of  an  accepted  bill, 
whifh  had  been  stolen,  and  was  afterwards  discounted  by  the  plain- 
tiff (a  broker)  without  knowing  the  name  of  the  holder,  though  his 
features  seemed  familiar,  and  without  asking  any  questions  as  to  his 
right  to  the  bill.  C.  J.  Ahuott  left  to  the  jury  the  question,  "whether 
the  plaintiff  took  the  l)ill  under  circumstances  which  ought  to  have 
excited  the  suspicion  of  a  prudent  and  careful  man?"  and  he  put 
to  them  this  very  significant  in(juiry,  what  they  woidd  think  of  a  sign 
like  this: — '^liills  disrountrd  fur  jirrsotis  whose  frnturrs  are  famiUar, 
and  no  f/uesiions  a.*iked."  The  defendant  had  a  verdict,  and  the  court 
refused  to  disturb  it.  This  decision  was  followed  in  several  subse- 
quent cases;  until  at  length,  in  Crook  r.  Jadis.  5  B.  &  Ad.  911,  which 
was  also  thfr  case  of  an  accepted  bill,  fraudulently  put  in  circulation, 
Lord  Dknman  told  the  jury  to  find  for  the  ])laintifT,  "if  they  thought 
he  had  not  been  guilty  of  grosx  negligence  in  taking  the  ])ill ;"  and  his 
ruling  was  sustained  by  the  whole  court.  This  case,  again,  governed 
several  others;  until,  in  Goodman  i\  Harvey,  4  Ad.  &  Ell.  870, 
Lord    Dknman    and    his    as.sociates    took    another    step,    and    held, 


CIlAl'.    II.]    ELLIS   &    MORTON   V.   OHIO   LIFE   INSURANCE   CO.  503 

that  "gross  negligence  only  could  not  be  a  sufficient  answer, 
where  the  party  has  given  consideration  for  the  bill.  Gross  neg- 
ligence may  be  evidence  of  mala  fides,  but  is  not  the  same  thing." 
And  they  add : — "We  have  shaken  off  the  last  remnant  of  the  con- 
trary doctrine." 

It  is  not  a  little  remarkable,  if  these  cases  can  properly  have  so 
commanding  an  influence  upon  the  question  before  us,  that  they 
should  not  have  been  alluded  to,  either  by  the  court  or  counsel,  in 
any  of  the  cases  to  which  we  have  referred.  They  present  an  im- 
portant question,  and,  when  it  shall  properly  arise,  one  which  will 
deserve  careful  attention;  but,  in  the  decision  of  this  case,  we  re- 
gard it  alike  immaterial,  whether  the  rule  of  Lord  Texterden,  or 
the  first  impression,  or  "sober  second  thought"  of  Lord  Denjian, 
is  adopted.  They  were  all  actions  brought  upon  genuine  bills,  either 
stolen,  lost,  or  fraudulently  negotiated;  and  the  rule  which  governed 
them  all,  has  its  foundation  in  that  public  policy  which  fosters  the 
circulation  of  bills,  as  a  medium  of  exchange,  answering  the  pur- 
poses of  currency.  But  the  law  has  shown  no  such  anxiety  to  facilitate 
the  circulation  of  forgeries.  On  the  contrary,  however  innocent  and 
careful  the  holder  may  have  been,  if  he  is  obliged  to  trace  his  title 
through  a  forgery,  the  instrument  is  a  nullity  in  his  hands.  Before 
any  encomiums  can  properly  be  passed  upon  the  peculiar  and  happy 
adaptation  of  the  bill  of  exchange  for  circulation,  or  any  foundation 
can  be  laid  for  insisting  that  the  title  of  the  holder  shall  not  be  af- 
fected by  anything  that  may  have  attended  its  private  history  before 
reaching  his  hands, — a  bill  must  exist,  of  which  title  may  be  predi- 
cated, and  to  which  such  considerations  may  be  referred.  We  do  not 
say  that  every  name  appearing  upon  it  must  be  genuine :  but  there 
must  at  least,  either  at  its  inception,  or  coming  upon  it  afterwards 
and  impliedly  warranting  the  previous  signatures,  be  some  one  liable 
to  pay  it  before  it  acquires  the  character  of  a  bill,  in  any  respect  or  for 
any  purpose.  The  rule  insisted  upon,  is  a  rule  alone  applicable  to  the 
protection  of  hfjal  titles,  and  to  the  instruments  liy  which  such  titles 
may  be  acquired,  and  to  no  other.  What  title  did  the  defendants  get 
when  they  took  the  paper  appearing  in  this  case?  Certainly,  none. 
It  was  as  perfect  a  nullity  as  though  no  word  had  been  written  upon 
it.  No  one  appeared  to  be  liable  upon  it  but  the  drawers,  and  their 
names  were  forged.  Even  the  felon,  although  liable  for  his  fraud,  was 
not  liable  as  a  party  to  the  paper.  With  exactly  the  same  propriety 
could  a  plea  of  purchase,  for  a  valuable  consideration  without  notice, 
be  sustained  upon  a  forged  deed,  as  this  rule  applied  to  a  paper  of 
that  description. 

If  the  defendants  are  entitled  to  retain  the  money,  it  is  upon  a 
different  principle,  resting  upon  different  considerations,  and  with 
other  and  different  objects.  Confessing  the  nullity  of  the  paper  as 
a  muniment  of  title,  they  must  stand  upon  their  interest,  to  know 


504  ELLIS    4    MORTON    I'.    (JllIO    LIFE    INSURANCE    CO.     [BOOK    II. 

it  at  the  earliest  moment,  and  their  riglit  to  exact  the  information 
from  the  plaintilfs,  when  it  was  presented  for  payment.  Tlie  negli- 
gent omission  of  the  plaintilfs  to  discharge  this  duty,  resulting  in 
injury  to  the  defendants,  lies  at  the  very  foundation  of  the  rule, 
which  subjects  them  to  the  loss  and  allows  the  defendants  to  retain 
the  money.  But  it  would  indeed  be  singular,  if  the  one  party  could 
be  visited  with  consequences  so  severe,  upon  the  mere  legal  imputation 
of  negligence  and  injury,  and  the  other  stand  wholly  unaffected  for 
their  negligence,  however  gross  and  injurious  it  might  have  been. 
As  was  said,  in  the  Bank  of  Commerce  r.  The  Union  Bank,  "the  plain- 
tiffs' right  of  recovery  rests  on  equitable  grounds;"  and,,  in  our  opin- 
ion, they  place  themselves  uj)on  the  highest  equitable  ground  for  a 
return  of  the  money,  when  they  show  that  it  was  theirs,  that  they 
parted  with  it  by  mistake,  and  without  consideration,  upon  a  forged 
instrument  which  the  defendants,  by  their  negligent  disregard  of 
duty,  had  contributed  to  induce  them  to  act  upon,  as  genuine.  In  the 
forum  of  conscience,  it  is  true,  there  may  be  a  wide  difference  between 
intentional  injuries  and  those  arising  from  negligence.  But  no  man 
operates  quite  as  absolutely  in  this  world  as  though  he  was  the  only 
man  in  it ;  and  the  very  existence  of  society  depends  upon  compelling 
every  one  to  pay  a  proper  regard  to  the  rights  and  interests  of  others. 
The  law,  therefore,  proceeding  upon  the  soundest  jjrineiples  of  moral- 
ity and  public  policy,  has  adapted  a  large  number  of  its  rules  and 
remedies  to  the  enforcement  of  this  duty.  In  almost  every  depart- 
ment of  active  life,  rights  are  in  this  manner  daily  lost  and  acquired, 
and  we  know  of  no  reason  for  making  the  commercial  classes  an 
exception. 

The  necessity  for  care  and  caution  on  tlie  part  of  those  who  use 
bills  and  checks,  to  prevent  injury  to  those  upon  whom  they  are 
drawn,  is  strikingly  illustrated  in  another  class  of  cases,  which  turned 
upon  a  principle  very  analogous  to  the  one  that  we  have  applied  to 
this.  As  a  general  proposition,  it  is  perfectly  well  settled,  that  pay- 
ment upon  a  forged  cheek  or  order  cannot  be  charged  by  the  party  pay- 
ing, against  the  i)arty  })urporting  to  have  drawn  the  paper;  but  the 
latter  will  be  entitled  to  recover  the  money  intrusted  to  the  former, 
however  innocently  or  with  whatever  caution  the  payment  may  have 
been  made.  Hall  v.  Fuller.  r>  B.  &  C.  7r,() ;  .Tohnson  r."  Windle,  3  Bing. 
X.  r.  '>'i:>:  Hobert.s  r.  Tucker,  12  Q.  B.  r^OO. 

But  vet.  in  Young  r.  Orote,  l  Bing.  2r)3.  whore  the  customer  had 
entrusted  iiis  wife  to  fill  up  checks  in  his  absence,  and  this  had  been 
8o  inartificially  and  carelessly  done,  as  to  be  easily  changed  from 
£.10  to  £,^'}(),  the  banker  was  held  entitled  to  a  credit  for  the  larger 
sum.  In  the  very  recent  case  of  Orr  r.  The  Union  Bank  of  Scotland, 
in  the  house  of  lords  (20  Eng.  Law  ^  K(\.  Bep.  1),  Lord  Chancellor 
Chavwortii.  in  speaking  of  tlie  general  rule,  and  of  the  exception 
engrafted   uj>on   it   by   this  case,  says:  "The  decision   went  on  the 


CHAP.    II.]  HARDY    &    BROS.    V.    CHESAPEAKE   BANK.  505 

ground  that  it  was  the  fault  of  tlie  customer;  the  l^ank  had  been  de- 
ceived. The  principle  is  a  sound  one,  that  when  the  customer's  neg- 
lect of  due  caution  has  caused  his  bankers  to  make  a  payment  on  a 
forged  order,  he  shall  not  set  up  against  them  the  invalidity  of  a 
document  which  he  has  induced  them  to  act  on  as  genuine." 

We  have  thus,  at  much  greater  length  than  was  intended  at  the 
outset,  stated  our  views  of  this  case.  We  have  nowhere  doubted 
the  wisdom  or  policy  of  the  rule,  which  allows  an  innocent  holder 
to  require  the  drawee  to  pass  upon  the  signature  of  the  drawer,  and 
makes  him  responsible  for  the  decision  he  makes;  nor  the  justice  of 
permitting  the  former  to  retain  the  money  received  upon  a  forger}', 
when  some  one  must  suffer  by  the  mistake.  But  we  must  be  better 
informed  than  at  present,  before  we  shall  be  able  to  perceive  the 
justice  or  propriety  of  permitting  a  holder  to  profit  by  a  mistake 
which  his  own  negligent  disregard  of  duty  has  contributed  to  induce 
the  drawee  to  commit. 

Should  the  plaintiffs  be  ultimately  able  to  satisfy  a  jury  of  the 
state  of  facts  which  their  evidence  before  conduced  to  prove,  tbey 
would,  in  our  opinion,  have  established  a  clear  right  to  recover. 

Judgment  reversed  and  came  remanded. 

Thurmax,  C.  J.,  and  Swax,  J.,  dissented.^ 


Ix  Flardy  &  Bros.  v.  Chesapeake  Banl  (1879)  51  Md.  562,  585, 
Alvey,  J.,  delivering  the  opinion  of  the  Court,  said: 

"1.  It  is  now  perfectly  well  settled,  that  the  relation  between  banker 
and  customer,  who  pays  money  into  the  bank,  or  to  whose  credit  money 
is  received  there  on  deposit,  is  the  ordinary  relation  of  debtor  and 
creditor ;  and  that  when  the  liank  receives  the  money  as  an  ordinary 
deposit  and  gives  credit  to  the  depositor,  the  money  becomes  the  funds 
of  the  bank,  and  may  be  used  by  it  a.s  any  other  funds  to  which  it 
may  be  entitled.    It  is  accountable  for  the  deposits  that  it  may  receive 

"'To  the  same  effect,  Nat.  Bank  ?•.  Banps.  lOG  :Mass.  441;  Danvers  Bank  r. 
Salem  Bank,  151  Mass.  280;  Pcoplo's  Bank  r.  Franklin  Bank.  88  Tenn.  299; 
Rouvant  v.  San  Antonio  Bank,  63  Tex.  010.  The  French  law  is  the  same.  2  Par- 
dcssus,  Cours  de  Droit  Comni.  (3  ed.).  §  50.5:  2  Bedarride.  Lettre  de  Change 
(2  ed.).  §  377. 

''But  see  contra,  Howard  r.  Mississijijii  Bank.  2S  La.  Ann.  727:  Conim. 
Bank  v.  First  Bank,  30  lid.  11;  Salt  Bank  r.  Syracu.«e  Inst.  02  Barb.  101;  St. 
Albans'  Bank  v.  Farmers'  Bank.  10  Vt.  141.  It  would  not  be  surprising  if 
the.se  last  four  cases  should  not  be  followed  even  in  the  jurisdictions  in  which 
they  were  decided."    Ames,  "The  Doctrine  of  Price  r.  Neal."  supra. 

Of  course,  while  drawee  must  know  drawer's  sijjnature,  if  the  drawee  is 
misled  by  the  bad  faitii  or  negligence  of  the  holder,  he  may  recover  from  the 
holder.  First  National  Bank  v.  Richer  (1874)  71  111.  439.  Bigelow,  Bills, 
Notes  and  Clioques,  225. — Ed. 


506  JOHNSTON    r.    COMMERCIAL   BANK.  [BOOK    II. 

as  debtor,  and  in  respect  to  ordinary  deposits  there  is  an  implied 
agreement  between  the  bank  and  the  depositor  that  the  checks  of  the 
latter  will  be  honored  to  the  extent  of  the  funds  standing  to  his 
credit.  Ilorwitz  r.  EUinger,  31  Md.  VJ2,  503;  Foley  v.  Hill,  2  C.  & 
Fin.  28;  Thompson  r.  Kiggs,  o  Wall.  W3\  Bank  of  thf  Kepul)lic  r. 
Millard,  10  Wall.  152,  155.  TlK-re  is  no  <iuestion  of  trust,  therefore, 
between  the  parties,  but  tlii'ir  relation  is  purely  a  legal  one;  and  if 
the  bank  pays  money  on  a  forged  check,  no  matter  under  what  circum- 
stances of  caution,  or  however  honest  the  iK'lief  in  its  genuineness, 
if  the  depositor  himself  be  free  of  blame,  and  has  done  nothing  to 
mislead  the  bank,  all  the  loss  must  be  borne  by  the  bank,  for  it  acts 
at  its  peril,  and  pays  out  its  own  funds,  and  not  those  of  the  depositor. 
It  is  in  view  of  this  relation  of  the  parties,  and  of  their  rights  and 
obligations,  that  the  principle  is  universally  maintained,  that  banks 
and  bankers  are  bound  to  know  the  signatures  of  their  customers,  and 
that  they  pay  checks  jnirporting  to  be  drawn  by  them  at  their  peril. 
Com.  &"Farm.  Xat.  Bank  v.  First  Xat.  Bank,  30  Md.  11.  Xo  right 
or  title  can  be  legally  claimed  through  a  forgery;  and  the  possession 
by  the  bank  of  a  forged  check  upon  which  money  has  been  paid, 
affords  of  itself  no  ground  for  claim  of  credit  in  account  as  against  the 
party  whose  name  has  been  forged."^ 


JOHNSTON  V.  COMMFRCTAL  BANK. 

Supreme  Court  of  Appeals  of  West  Virginia,  1885. 

[27  West  Virgin  {(I.  343.] 

Johnson,  President.  On  September  3,  1884,  B.  R.  Johnston 
brought  in  the  municipal  court  of  Wheeling  an  action  of  tres|)ass  on 
the  case  in  assumpsit  against  the  Commercial  Bank  of  Wheeling,  to 
recover  the  amount  of  a  note,  $225.00,  which  was  purported  to  have 

'Sec  First  Nntional  Hank  r.  Yost  (ISitO)  11  N.  V.  Siipp.  S(i2 ;  Uohinson  r. 
Yarrow  (1817)  7  Taunt.  455. 

Hut  a  bank,  paying  upon  a  for^'cil  ciiilnrx'mpnt,  may  rccovtT  from  tlip  one 
to  whom  the  monoy  Ih  paid.  Lcatln-r  Manufacturprn'  Hank  r.  Merchants'  Rank 
(1«S8)  12ft  r.  S.  20,  printed  jjost ;  even  if  the  endorsement  is  that  of  the 
drawer,  provided  the  for^fed  name  appeared  as  an  endorsement  only,  not- 
withstanding delay  in  discover  in;;  the  forp-ry.  llyan  r.  Hank  of  Montreal 
(iHHf))  12  Ont.  .3lt;  and  it  would  seem  that  an  irrevcK-ahle  chanpe  of  position 
f>f  the  one  paid  is  no  defence.  Corn  Kxiiian^'e  Hank  r.  Nassau  Hank  (1883) 
1»1  N.  Y.  74.  Hut  a  iianker  is  not  lield  to  a  knowled>;e  of  the  si^mature  of  a 
drawer,  a  depositor,  when  he  discounts  the  bill.  Fuller  r.  Smith  (1824) 
1  C.  Si  P.  1!>7. 

"The  liability  of  the  banker,  however,  for  a  loss  occasioned  l)y  neglect,  to 
exercise  such  vigilance,  is  conflru-fl  to  the  maker  alone.  So  far  as  other  i)artie!i 
through  whose  hands  un  altered  clu-ck  passes  are  concerned,  they  have  the  same 


CHAP.    II.]  JOIIXSTOX    V.    COMMERCIAL   BANK.  507 

been  signed  bv  said  B.  R.  John.^ton,  payable  to  the  order  of  Philip 
Metzner,  and  ne^n)tiated  l)y  said  bank,  and  after  maturity  paid  by 
said  supposed  maker,  who  afterwards  discovered  that  his  signature 
thereto  was  a  forgery.  The  declaration  contained  the  common  counts 
in  assuwpsit,  no  special  count. 

The  defendant  demurred  to  the  declaration,  which  demurrer  was 
overruled,  and  the  defendant  pleaded  non-assumpsit.  The  case  was 
tried  before  a  jury  and  verdict  was  rendered  for  the  plaintiff.  The 
defendant  moved  to  set  aside  the  verdict  and  grant  it  a  new  trial, 
which  motion  was  overruled,  and  judgment  was  entered  on  the  verdict. 
The  defendant  took  a  bill  of  exceptions  to  certain  rulings  of  the  court, 
which  bill  certifies  all  the  evidence  in  the  case.^ 

Under  these  circumstances  can  the  defendant,  the  Commercial  Bank, 
be  required  by  law  to  pay  back  the  money  so  paid  on  said  forged  note  ? 

The  leading  case  on  the  subject,  so  regarded  in  all  the  l)Ooks,  is 
Price  V.  iSTeal,  decided  in  1763,  3  Burr.  1354.  It  was  an  action  on 
the  case  brought  by  Price  against  Neal,  wherein  Price  declares  that 
the  defendant,  Xeal,  was  indebted  to  him  to  £80  for  money  had  and 
received  to  his,  plaintiff's,  use,  and  damages  were  laid  at  £100.  It 
was  proved  at  the  trial,  that  a  bill  was  d^a^^'n  as  follows  :- 

In  Smith  v.  Mercer,  6  Taunt.  76  (IE.  C.  L.  312),  the  defendant 
took  a  bill  accepted  payable  at  the  plaintiffs',  who  were  the  drawer's 
bankers  and  endorsed  it  to  their,  the  defendants',  agents,  to  whom  the 
plaintiffs  paid  it  when  due,  and  seven  days  after  sent  it  as  their 
voucher  to  the  drawee,  who  apprized  them,  that  the  acceptance  was 
forged.  It  was  held  by  three  judges,  Dallas,  Heath  and  Gibbs, 
C.  J.,  against  Chambre,  J.,  that  the  plaintiffs  could  not  recover  from 

opportunity  for  dotocting  framlult'iit  alterations  in  the  body  of  the  check  that 
the  banker  has,  and  as  to  them,  after  payment,  he  is  responsible  only  for  the 
genuineness  of  the  maker's  signature.  Bank  of  Commerce  v.  Union  Bank,  3 
N.  Y.  230.  The  principle  stated  in  White  v.  Continental  Bank,  64  X.  Y.  316; 
Marine  National  Bank  t\  National  City  Bank,  59  N.  Y.  67,  and  kindred  cases, 
that  the  drawees  of  a  check  or  bill  are  held  to  a  knowledge  of  tlie  signature 
only  of  their  correspondents,  the  drawers,  and  not  for  a  want  of  genuineness 
of  the  body  of  the  instrument,  applies  only  between  them  and  such  other  par- 
ties as  have  equal  ojipnrtunity  of  inspection,  and  equal  means  for  determining 
the  existence  of  an  alteration.  Such  parties  take  the  paper  relying  solely  upon 
the  reputed  responsibility  of  their  transferers  and  the  other  parties  to  it.  and 
its  apparent  genuineness,  and  they  therefore  deal  in  it  at  their  peril.  They 
have  no  duty  to  perform  in  respect  to  it  except  that  of  guarding  their  own  in- 
terests, and  in  buying  and  transferring  it  to  others  they  take  the  risk  of  loss 
occurring  from  fraudulent  alterations."' — Crawford  r.  West  Side  Bank  (1SS5) 
100  N.  Y.  50,  54.— En. 

'A  part  of  the  opinion  giving  details  of  the  transaction,  matters  of  evidence 
and  jury  charges  refused,  has  been  omitted. — En. 

■The  learned  Court  here  quoted  in  crtoiso  from  Price  i\  Neal.  atitc. — En. 


508  JOIIXSTOX    V.    COMMERCIAL    BANK.  [BOOK    II. 

the  defentlants  the  amount  which  they  had  thus  paid  tluMu  on  the 
forged  acceptance.  Dallas,  J.,  said:  "And  though  the  facts  are  not 
precisely  tlie  same,  I  think  tlie  case  of  Price  v.  Neal,  3  Burr.  1354, 
and  1  Bl.  390,  furnishes  a  rule,  which  ought  to  govern  the  present." 
GiBBs,  C  .!.,  said:  "A  narrow  and  particular  ground  is  with  me 
conclusive  in  this  case.  If  the  acceptance  had  heen  genuine  and  the 
plaintiffs  had  refused  payment,  the  defendants  had  their  remedy 
against  the  supposi'<l  acceptor;  or  if  tliey  failed  to  ohtain  the  amount 
from  him,  they  had  their  remedy  against  the  prior  parties  on  the  bill. 
The  acceptance  carried  with  it  an  order  on  the  bankers  of  the  supposed 
acceptor  to  pay  the  money.  It  purported  to  be  an  order  of  Evans, 
whose  banker  the  plaintiffs  were.  It  was  incumbent  on  them  to  see 
to  th(»  reality  of  that  order  before  they  obeyed  it.  and  if  by  obeying 
it  they  are  the  sufferers,  they  ought  not  to  throw  on  another  a  loss 
occurring  without  fault  of  his.  See  the  circumstances:  The  defendants 
present  the  bill  for  payment,  and  it  is  paid  to  them.  The  money 
remained  in  their  hands,  without  demand  made  on  them  for  it,  from 
the  23d  of  April  till  the  30th  of  April ;  the  forgery  being  then  dis- 
covered the  plaintiffs  demand  it  back  from  the  defendants.  If  the 
plaintiffs  had  originally  refused  to  pay  this  money,  the  holder  would 
immediately  have  given  notice  to  the  drawer  and  to  the  immediate 
indorser  which  would  have  been  transmitted  to  the  first  indorser  and 
drawer.  In  consequence  of  the  bill  being  paid  the  defendants  con- 
tinued to  have  the  money  in  their  hands  till  the  30th  of  April.  I 
think  it  was  then  too  late  for  the  defendants  to  give  notice  to  the 
prior  parties,  and  by  not  having  given  such  notice  they  lost  their 
remedy  against  tho.se  parties,  ...  I  hav(»  put  the  ca.se  on  the  express 
j)oint  that  by  the  acts  of  the  plaintiffs  the  defendants  are  ])ut  in  a 
worse  situation ;  but  I  do  not  mean  therel»y  to  express  my  di.^sent  from 
the  larger  ground  on  which  the  case  has  been  put  by  my  brothers 
Hkatii  and  Dallas;  but  I  think  the  ground  on  which  I  have  put  it 
i.s  alone  a  sufTicient  answer  to  all  the  arguments  tliat  have  l)een 
used." 

CHA.MBRE,  J.,  in  his  dissj-nting  opinion,  said:  "The  situation  of  the 
plaintiffs  is  e.xtremely  material.  They  are  no  parties  to  this  bill, 
neither  draw(?es,  acce[)tees  or  payees.  They  are  not  purchasers  of  the 
bill;  they  never  had  any  property  in  it;  they  are  mere  servants  and 
ag«'nt.s  of  the  payjtv;  it  is  as  to  them,  a  payment  under  a  supposed 
authority  which  drn-s  not  exist." 

In  .Mather  r.  Maidstone.  37  Kng.  L.  &  Kq.  339,  .Teuvis,  C.  .7..  said: 
"As  a  gr'neral  rule  the  holder  of  a  bill  of  exchange  is  entitled  to  know 
whether  the  acceptance  is  genuine  and  whether  it  will  be  paid  by  the 
acceptor.  If  the  acceptor  i)ays  it,  he  cannot  afterwards  recover  the 
money  back,  if  he  has.  jit  the  time  ho  pays  it,  the  means  of  satisfying 
himwlf  of  his  liability  to  pay  it,  even  though  it  should  ttirn  out  that 
the  acceptance  is  a  forgery.     Here  instead  of  paying  money  for  the 


CHAP.    II.]  JOHNSTON    V.    COMMERCIAL    BANK.  509 

1)111,  the  acceptor  gave  another  bill,  but  I  think  tliat  can  malce  no 
(lilliTence.  .  .  .  The  defendant,  after  the  bill  had  corne  into  his 
hand.s,  and  after  he  had  had  an  ample  opportunity  of  inspecting  it, 
kept  it  and  gave  a  fresh  bill  at  three  months;  and  after  an  interval  of 
one  month,  he  discovered  that  the  acceptance  of  the  original  bill  was 
a  forgery,  and  he  said  that  he  was  not  liable  on  it,  and  offered  to 
return  it,  so  as  to  put  the  plaintiff  in  the  same  condition,  as  he  was  in, 
a  month  before,  the  plaintiff  having  been  all  that  period  deprived  of  his 
remedy  against  the  other  parties  liable  on  the  bill.  Under  these  cir- 
cumstances the  defendant  cannot  be  allowed  now  to  say  the  acceptance 
was  not  in  his  handwriting."  See  Levy  v.  Bank  of  the  United  States, 
4  Dallas,  234. 

In  U.  S.  Bank  v.  Bank  of  Georgia,  10  Wheat.  33,  it  was  decided 
that  in  general  a  payment  received  on  forged  papers  or  in  base  coin 
is  not  good ;  and  if  there  bo  no  negligence  in  the  party,  he  may  recover 
back  the  consideration  paid  for  them  or  sue  upon  his  original  demand; 
but  that  this  principle  does  not  apply  to  a  payment  made  bona  fide 
to  a  bank  in  its  own  notes,  which  are  received  as  cash  and  afterwards 
discovered  to  be  counterfeit ;  that  in  case  of  such  a  payment  on  general 
account  an  action  may  be  maintained  l)y  the  party  paying  the  notes, 
if  there  is  a  balance  due  him  from  the  bank  upon  their  general  account. 
Mr.  Justice  Story  in  delivering  the  opinion  of  the  court,  affirms  the 
decision  of  Price  v.  Xeal,  supra,  and  says:  "The  case  of  Xeal  v.  Price 
has  never  since  been  departed  from,  and  in  all  the  subsequent  de- 
cisions, in  which  it  has  been  cited,  it  had  the  uniform  support  of  the 
court  and  has  been  deemed  a  satisfactory  authority."  The  Court  in 
this  case  also  approved  the  decision  in  Gloucester  Bank  v.  The  Salem 
Bank,  17  Mass.  33,  and  approvingly  quotes  the  following  from 
Parker,  chief  justice,  in  that  case: 

"The  true  rule  is  that  the  party  receiving  such  notes,  must  examine 
them  as  soon  as  he  has  opportunity,  and  return  them  immediately. 
If  he  does  not  he  is  negligent,  and  negligence  will  defeat  his  right  of 
action.  This  principle  will  apply  in  all  cases  where  forged  notes  have 
been  received,  but  certainly  with  more  strength,  when  the  party  receiv- 
ing them  is  the  one  purporting  to  be  bound  to  pay.  For  he  knows 
better  than  any  other  whether  they  are  his  notes  or  not,  and  if  he 
pays  them  or  receives  them  in  payment,  and  continues  silent  after  he 
has  had  sufhcient  opportunity  to  examine  them,  he  should  be  con- 
sidered as  having  adopted  them  as  his  own."  Tfeferring  to  the  case 
from  17  Mass.  and  Price  v.  Neal,  and  other  authorities  by  him  cited, 
^Ir.  Justice  Story  says:  "Against  the  presssure  of  these  authorities 
there  is  not  a  single  opposing  case:  and  we  must  therefore  conclude 
that  both  in  England  and  America,  the  question  has  been  supposed  to 
be  at  rest." 

In  Bank  of  St.  Albans  r.  Fanners'  .S:  Mechanics'  Bank,  10  Vt.  145, 
the  court,  by  Phelps,  judge,  said :  "The  case  of  Price  v.  Xeal  is  now 


510  JOHNSTON    V.    COMMERCIAL   BANK.  [BOOK   II. 

understood  to  have  proceeded  upon  the  ground,  that  the  drawee  is 
bound  to  know  the  handwriting  of  his  correspondent,  and  thus  under- 
stood, its  authority  lias  never  been  (juestioned.  It  has  often  been 
commented  on  both  in  the  English  courts  and  those  of  this  country, 
and  althouLrh  its  applicability  to  a  transfer  of  a  forged  security 
between  persons  not  parties  to  it  has  been  questioned,  yet  its  authority 
as  applied  to  the  case  of  such  a  bill,  accepted  or  paid  by  the  drawee, 
has  been  uniformly  and  fully  sustained.  That  the  rule  thus  adopted 
extends  as  well  to  the  case  of  a  bill  paid  upon  prisentnient,  as  to  one 
accepted  and  afterwards  circulated,  appears  not  only  from  the  case 
itself  but  from  subsequent  decisions,  in  which  the  case  itself  has  been 
approved  and  its  principle  adopted.  There  is  good  reason  for  the 
declaration,  upon  which  the  authority  of  that  case  rests,  to  be  found 
in  the  intrinsic  character  of  the  transaction  itself.  The  presentment 
of  a  bill  to  the  drawee,  is  a  direct  appeal  to  him  to  sanction  or  repudi- 
ate it.  It  is  an  inquiry  as  to  its  genuineness  addressed  to  the  party, 
who  of  all  men  is  supposed  to  be  best  able  to  answer  it,  and  wliose 
decision  is  most  satisfactory.  He  is  moreover  the  person,  to  whom 
the  bill  points,  as  the  legitimate  source  of  information  to  others; 
and  if  he  were  permitted  to  dishonor  a  bill,  after  once  having  honored 
it,  the  very  foundation  of  confidence  in  commercial  paper  would  be 
shaken.  There  is  a  wide  difference  between  such  a  transaction  and 
the  passing  of  paper  as  a  representative  of  money  between  persons 
etjually  strangers  to  it  in  the  ordinary  course  of  business.  In  the  latter 
case  the  receiver  relies  in  a  measure  upon  the  ])aper,  while  in  the 
former  the  case  is  reversed,  and  the  holder  relies  and  has  a  right  to  rely 
upon  the  decision  of  him,  to  whom  the  bill  is  addressed,  and  who  alone 
is  to  determine  whether  it  shall  be  honored  or  not." 

In  Ellis  &  Morton  v.  Ins.  and  Trust  Co.,  4  Ohio  St.  r.28,  it  was  held 
l)y  a  majority  of  the  court,  that  money  paid  upon  a  mistake  of  facts, 
and  without  consideration,  may  as  a  general  rule  be  recovered  back; 
that  a  well  settled  exception  of  this  rule  occurs,  when  the  payment  is 
made  by  the  drawee  of  a  forged  bill  or  check  to  a  holder  for  value 
without  fault,  and  the  money  cannot  be  returned  without  prejudice 
to  him ;  that  the  exception  rests  upon  the  supposed  accjuaintance  of 
the  drawee  with  the  drawer's  signature,  and  the  negligence  imputed 
to  him  for  paying  the  paper,  without  sullioient  inquiry  as  to  its 
genuineness;  that  this  exception  does  not  apply,  when  either  by  express 
agreement  or  n  settled  course  of  business  between  the  parties  or  by 
a  general  custom  in  the  place  applicable  to  the  business,  in  which  both 
partie.s  are  engaged,  the  holder  takes  upon  hitnself  the  duty  of  exer- 
cising some  material  precaution  to  prevent  the  fraud  and  by  his  negli- 
gent failure  to  perform  it  has  contril)uted  to  induce  the  payee  to  act 
upon  the  paper  as  genuine  and  to  advance  the  money  upon  it;  nor 
does  it  apply  in  any  case,  where  the  parties  are  in  a  mutual  fault,  or 
where  the  money  is  paid  upon  a  mistake  of  facts,  in  respect  to  which 


CHAP.    II.]  JOHNSTON    V.    COMMERCIAL    BANK.  511 

both  were  l)Oun(l  to  iiKjuire;  tliat  in  a  case  of  money  paid  upon  a 
forgery  not  falling  within  the  exception,  but  being  governed  by  the 
general  rule  it  is  sufficient  to  give  notice,  when  the  forgery  is  dis- 
covered. Thurman,  chief  justice,  and  Swan,  judge,  dissent  from  the 
decision.  Eaxney,  judge,  in  delivering  the  opinion  of  the  majority 
of  the  court,  said   on  page   G52 : 

"We  admit  it  to  be  equally  well  settled,  that,  where  the  instrument 
is  drawn  upon,  or  purports  to  be  signed  by,  the  party  paying  the 
money,  to  a  holder  without  default,  and  whose  situation  would  thereby 
be  changed  to  his  prejudice,  if  he  were  compelled  to  refund,  the  money 
cannot  be  recovered  back.  The  foundations  of  the  rule  are  sufficiently 
obvious.  The  party  is  supposed  to  know  his  own  handwriting,  in  the 
one  case,  or  that  of  his  customer  or  correspondent  in  the  other,  much 
better  than  the  holder  can;  and  the  law  therefore  allows  the  holder 
to  cast  upon  him  the  entire  responsibility  of  determining  as  to  the 
genuineness  of  the  instrument,  and  if  he  fails  to  discover  the  forgery, 
imputes  to  him  negligence,  and  as  between  him  and  the  innocent 
holder  compels  him  to  suffer  the  loss." 

In  Commercial  and  Farmers'  National  Bank  v.  First  National 
Bank,  30  Md.  11,  the  authority  of  Price  v.  Xeal  is  cited  and  ap- 
proved. 

In  National  Park  Bank  of  New  York  v.  Ninth  National  Bank, 
46  N.  Y.  77,  the  complaint  stated  that  on  March  2.5,  1867,  the  Ridgely 
National  Bank  of  Springfield,  Illinois,  drew  its  draft  or  bill  of 
exchange  on  plaintiff  for  the  sum  of  $14.20  payable  to  the  order  of 
Eli  Shirley  and'  delivered  the  same  to  the  payee ;  that  afterward  the 
amount  of  said  draft  was  fraudulently  changed  to  $6,300.00,  and 
the  name  of  the  payee  to  E.  G.  Fanchon,  Esq. ;  that  the  name  of 
William  Eidgely,  cashier,  signed  to  said  draft  was  erased  and  after- 
wards rewritten  by  the  person  making  the  erasure;  that  the  same  was 
then  discounted  Iw  the  Lexington  National  Bank  and  by  it  was 
endorsed  to  defendant;  that  afterward  and  on  or  about  April  12, 
1867,  defendant  presented  said  draft  to  plaintiff,  and  said  plaintiff 
paid  thereon  the  sum  of  $6,300 ;  that  plaintiff  discovered  the  forgery 
May  10,  1867,  and  forthwith  notified  the  defendant  thereof  and 
demanded  repayment  of  said  sum  less  $14.20,  which  was  refused.  De- 
fendant demurred  and  for  ground  stated,  that  complainant  did  not 
state  a  cause  of  action.  The  court  below  overruled  the  demurrer. 
Allen,  judge,  in  pronouncing  the  unanimous  opinion  of  the  court, 
said  on  page  SO : 

"For  more  than  a  century  it  has  lieen  held  and  decided,  without 
question,  that  it  is  incumbent  on  the  drawee  of  a  bill  to  be  satisfied 
that  the  signature  of  the  drawer  is  genuine;  that  he  is  presumed  to 
know  the  handwriting  of  his  correspondent,  if  he  accepts  or  pays  a  bill 
to  which  tlie  drawer's  name  had  been  forged,  he  is  bound  by  the  act, 
and  can  neither  repudiate  the  acceptance  nor  recover  the  money  paid." 


51'^  JOHNSTON'    r.    COMMERCIAL    HANK.  [BOOK    II. 

He  then  refers  to  and  approves  rricc'  r.  Xial,  and  subsequent 
decisions,  allinning  the  same  doctrine,  and  further  says: 

''Cases  have  been  distinguished  from  Price  v.  Xcal,  and  its  applica- 
bilitv  to  a  transfer  of  a  forged  instrument,  lietween  persons  not 
parties  to  it,  has  not  been  extended  to  forgeries  of  endorsements  or 
handwriting  of  parties  to  negotiable  instruments  other  tluui  tlie  draw- 
ers. But  as  applied  to  the  case  of  a  bill  to  which  the  signature  of  the 
drawer  is  forged,  accej)ted  or  paid  by  the  drawee,  its  authority  has  been 
uniforn\iy  and  fully  sustained,  and  the  rule  extends  as  well  to  the  case 
of  a  bill  paid  upon  presentment,  as  to  one  accepted  and  afterwards 
paid.  ...  A  rule  so  well  established  and  so  firndy  rooted  and 
grounded  in  the  jurisprudence  of  the  country,  ought  not  to  be  over- 
ruled or  disregarded.  It  has  become  a  rule  of  riglit  and  of  action 
among  commercial  and  business  men,  and  any  interference  with  it 
would  be  mischievous.  Judge  Ruggles  in  Goddard  v.  Merchants' 
Bank,  supra,  well  says:  'It  should  not  bo  departed  from  or  fritted 
away  by  exceptions  resting  on  slight  grounds,  and  cannot  be  over- 
ruled, without  overthrowing  valuable  and  wcil-si'ttli'd  principles  of 
commercial   law.'  " 

The  judgment  of  the  court  below  was  reversed,  and  judgment 
entered  for  defendant.  The  opinion  of  Rugglks,  J.,  in  Ooddard  v. 
Merchants'  Hank,  4  Comstock,  14!>,  referred  to  by  Judge  Allen  was 
a  dissenting  opinion  from  the  majority  of  the  court,  who  he  evidently 
thought  were  in  that  ca.se,  "frittering  away"  by  an  exception  to  the 
general  rule,  and  thus  overthrowing  "valuable  and  well-settled  prin- 
ciples of  commercial  law."  To  the  same  effect  is  Stout  v.  Bennett, 
3!)  Mo.  277;  Young  &  Son  t\  Lehmon,  Darr  &  Co.,  (;3  Ala.  519; 
Bernheimer  v.  Marshall  &  Co.,  2  Minn.  78,  and  Hoffman  &  Co.  v. 
Bank  of  Milwaukee.  12  Wall.  181.  I  will  now  refer  to  some  cases 
cited  by  counsel   for  j)laintifr,  the  defenthint  in  error. 

The  case  of  Goddard  v.  Merchants'  Bank,  siiprn,  was  a  case  in 
which  it  appeared  that  a  forged  l)ill  purporting  to  be  drawn  by  a  bank 
in  Ohio  was  presented  to  the  drawees  in  New  York  and  payment 
H'fused  on  Sntiinldii  for  want  of  funds  of  the  drawer.  On  }foii(hni 
following  the  plaintiff  on  being  informed  of  the  matter,  called  at  the 
office  of  the  notary,  who  had  the  bill  for  protest  and  notice,  and  left 
his  check  for  the  amount  in  order  to  take  up  the  bill  for  the  honor 
f»f  the  drawers.  In  conse(|uence  of  the  absence  of  the  notary  from 
hi8  oflice  he  did  not  see  the  bill,  but  left  word  to  have  it  sent  to  his 
place  of  business.  The  notary  on  the  same  dav  delivered  the  check 
over  to  the  holder  of  the  bill  but  did  not  send  the  bill  to  the  plaintifT. 
The  plaintiir  called  airain  the  next  dav  at  the  olVice  of  the  notary  and 
on  Ix'ing  shown  the  iiill  a.scertained  and  pronounced  it  to  be  a  ff)rg('ry. 
It  was  held  by  a  majority  of  the  court.  Hi'ogles,  Judpe,  and  Jewett, 
Judge.  (liM>eiif ijig.  that  under  the  circumstances  the  plaintilT  was  not 
chargeable  with  negligence,  and  that  he  was  entitled  to  recover  the 


CHAP.    II.]  JOHNSTON    V.    COMMERCIAL    BANK.  513 

rnoncy  ho  had  paid  on  the  ground  of  mistake.     To  the  same  effect  is 
Canal  Bank  v.  Bank  of  Albany,  1  Hill,  287. 

The  case  of  Lawrence  ct  al.  v.  American  National  Bank,  54  N.  Y. 
432,  only  lays  down  the  general  rule,  that  money  paid  under  mistake 
of  fact  may  be  recovered  back.  That  this  is  the  general  rule  is  nowhere 
doubted. 

In  National  Bank  of  Commerce  v.  Banking  Association,  55  X.  Y. 
211,  it  is  h.eld  that  a  bank  is  not  bound  to  know  the  handwriting  or 
genuineness  of  ihv  (illing  up  of  a  check  drawn  upon  and  paid  by  it. 
It  is  legally  concluded  only  as  to  the  signature  of  the  drawer  and"  its 
own  certification;  therefore,  when  a  bank  has  paid  by  mistake  to  a 
bona  fide  holder  of  a  certified  check,  which  after  certification  had 
been  fraudulently  altered  by  raising  the  amount,  it  can  recover  back 
the  amount  thus  paid,  unless  such  holder  has  suffered  loss  in  con- 
sequence of  the  mistake.  It  is  also  held  in  this  case  that  a  mistake 
in  recognizing  a  forged  instrument  as  genuine  is  binding  only  when 
the  forgery  is  such  that  it  ought  to  have  been  discovered  by  a  bare 
inspection  of  the  instrument  without  reference  to  anything  outside 
of  it,  not  even  t<i  the  memory  of  the  party  as  to  the  obligations  he 
had  issued.  This  decision  approves  Price  v.  Neal  and  the  case  in 
4G  N.  Y.  supra. 

Mayer  v.  Mayer,  63  N.  Y.  455,  is  an  ordinary  case  of  paying  money 
under  mistake  of  fact. 

In  First  National  Bank  of  Quincy  v.  Bicker,  71  111.  439,  the  excep- 
tion to  the  general  rule  is  recognized  that  the  drawee  of  a  check  is 
presumed  to  know  the  signature  of  the  drawer,  and  if  the  drawee  pays 
a  forged  check  to  the  holder  he  will  not  be  entitled  to  recover  back 
the  money  so  paid,  where  there  has  been  no  fraud  practiced  upon 
him.  But  it  was  held  that  the  drawee  or  payor  of  a  forged  bank-check 
can  recover  back  the  amount  paid  by  him  on  it,  when  the  holder  or 
pay(>o  is  himself  at  fault  or  has  been  guilty  of  fraudulent  practices, 
which  may  have  thrown  the  drawee  off  his  guard. 

Welch  V.  Goodwin,  123  Mass.  71,  seems  to  have  boon  decided  without 
much  consideration,  and  virtually  overruled  Gloucester  Bank  v.  Salem 
Bank,  17  Mass.  33.  without  noticing  it  and  without  referring  to  one 
of  the  many  authorities  we  have  cited.    Lord,  Judge,  said: 

"The  question  which  we  are  called  upon  to  decide  is,  whether  under 
any  circumstances,  a  party  may  recover  hack  money  upon  a  security 
being  a  forged  signature  of  himself,  supposing  it  at  the  time  of 
payment  to  be  his  genuine  signature.  We  can  have  no  doubt  that  he 
may.  This  is  entirely  clear  in  case  he  was  induced  to  make  the  pay- 
ment by  fraud  or  misrepresentation.  Nor  is  it  necessary  that  fraud  or 
misrepresentation  should  exist.  An  innocent  mistake  whether  arising 
from  natural  or  tomporarv  infirmity,  or  otherwise  made  without  fault 
on  his  part,  entitles  him  i<i  tlio  same  relief.  How  far  this  right  would 
be  aflfected  by  neglect  on  his  part  to  give  prompt  notice  of  the  mistake 


514  JOHXSTON    V.    COMMKIUIAL    HANK.  [bOOK    II. 

or  hy  any  change  affectinfi  the  situation  or  the  rights  of  the  persons 
to  whom  the  payment  is  made  we  are  not  called  upon  to  consider. 
Here  notice  was  given  immediately  upon  discovering  the  forgery. 
Whatever  securities  were  given  up  by  the  defendant  in  consideration  of 
the  receipt  of  the  forged  note  had  been  given  up  l)efore  the  payment 
was  made." 

It  seems  to  us  from  the  review  of  the  authorities,  that  it  is  a  rule 
of  commercial  law  too  firmly  established  to  be  shaken,  being  sustained 
by  an  unbroken  line  of  authorities  for  more  than  a  century,  that  the 
drawee  of  a  bill  of  exchange  is  presumed  to  know  the  handwriting 
of  the  drawer,  and  a  fortiori  the  maker  of  a  negotiable  note  is  pre- 
sumed to  know  his  own  signature,  and  if  the  drawee  accepts  or  pays 
the  bill,  or  the  maker  pays  the  negotiable  note,  in  the  hands  of  a 
bona  fide  holder,  to  which  the  drawer's  or  maker's  name  has  been 
forged,  he  is  bound  by  the  act  and  cannot  recover  back  the  money  so 
paid.  It  is  essential  to  the  business  interests  of  the  country,  that  there 
shall  be  certainty  in  commercial  transactions;  that  the  mercantile  law 
shall  be  firm  and  stable,  never  varying,  so  that  those  who  deal  in 
commercial  paper  may  know  wliat  their  rights  are.  Of  course  a  drawee 
or  maker  of  commercial  paper  may  by  the  exercise  of  due  care  protect 
himself  against  losses  by  forgery,  and  if  he  pays  such  paper,  the  law 
imputes  to  him  negligence  in  so  doing,  and  he  cannot  after  such  pay- 
ment throw  the  loss  upon  the  holder  of  such  paper.  But  it  is  said  the 
holder  of  such  paper  should  not  be  permitted  to  hold  the  money  so 
paid,  unless  he  has  been  placed  in  a  worse  situation  thereby  and  has 
suffered  actual  lo.ss;  under  such  circumstances  the  law  presumes  he  has 
been  placed  in  a  worse  situation  and  would  l)e  injured,  if  he  had  to 
pay  the  money  back.  The  law  presumes  a  loss,  and  it  need  not  be 
proved.  Mr.  Justice  Story  says  in  United  States  Bank  v.  Bank  of 
Georgia,   10  Wheat.  356: 

"It  is  Hullicient  for  us  to  declare  that  we  jilace  our  judgment  in  the 
present  case  upon  tlie  grounrl,  that  the  defendants  were  bound  to  know 
their  own  notes,  and  having  received  them  without  objection  they 
cannot  now  recall  their  assent.  We  think  this  doctrine  founded  on 
pul)lic  policy  and  convenience;  and  that  actual  loss  is  not  nece.s.sary 
to  be  proved,  for  potential  loss  may  exist,  and  the  law  will  always 
presume  a  pos.sible  loss  in  ca.'»es  of  this  nature." 

But  it  is  said,  that  Johnston  did  not  see  the  note  before  lie  paid  it. 
So  much  greater  was  the  negligence'  the  law  imputes  to  him.  lie  had 
every  opportunity  to  see  the  note.  ,\twati;i{,  judge,  in  delivering 
the  opinion  of  the  court  in  2  Minn.  p.  84,  says: 

"If  tbe  drawee  is  allowed  to  recover  on  payment  of  a  forged  draft, 
bocati.'<e  he  has  not  ncvn  it,  he  would  |)robnbly  never  care  to  see  a 
draft  before  [tavment,  but  even  when  presented  at  his  counter  and  he 
present,  woidd  direct  his  clerk  to  pay  it,  and  afterwards  take  advantage 
of  his  own  laches  to  enforce  a  recovery.     To  admit  this  would  be  to 


CHAP.    II.]  MAYER   V.    MAYOR.  515 

overthrow  the  long-settled  principles  of  law  and  require  the  holder 
instead  of  the  drawee  to  guarantee  the  signature  of  the  drawer,  which 
manifestly  would  be  most  unjust  and  inequitable  and  destructive  of 
commercial  business." 

It  is  unnecessary  to  pursue  this  discussion  further.  Johnston  was 
clearly  guilty  of  negligence  in  paying  the  note,  and  he  cannot  throw 
the  loss  on  the  Commercial  Bank,  which  Avas  without  fault  in  the 
premises.  He  not  only  did  not  examine  the  note,  before  he  paid  it, 
but  did  not  examine  it  for  several  days  afterwards  and  did  not  seem 
to  be  certain  it  was  a  forgery,  until  he  had  examined  the  books  of  the 
Eiverside  Furniture  Company.  This  was  on  the  9th  day  of  April, 
seven  days  after  he  had  paid  the  note. 

The  judgment  of  the  municipal  court  of  Wheeling  is  reversed,  the 
verdict  of  the  jury  set  aside,  and  the  case  is  remanded  for  a  new  trial. 

Reversed.    Remanded. 


MAYER,  RESPONDENT  v.  THE  MAYOR,  ALDERMEN,  AND 

COMMONALTY  OF  THE  CITY  OF  NEW  YORK, 

APPELLANT. 

Court  of  Appeals  of  New  York,  1875. 

[G3  New  York,  455.] 

Appeal  from  judgment  of  the  General  Term  of  the  Supreme  Court 
in  the  first  judicial  department,  affirming  a  judgment  in  favor  of 
plaintiff,  entered  upon  a  verdict. 

.   This  action  was  brought  to  recover  back  money  alleged  to  have  been 
paid  to  defendant  by  mistake. 

Defendant's  counsel  on  the  trial  moved  to  dismiss  the  complaint  upon 
the  ground  that  plaintiff  could  not  recover  back  the  money,  having 
paid  it  voluntarily,  and  there  being  no  mutual  mistake.  The  motion 
was  denied,  and  defendant's  counsel  duly  excepted. 

Andrews,  J.  The  general  rule  that  money  paid  under  a  mistake 
of  a  material  fact  may  be  recovered  back,  although  there  was  negli- 
gence on  the  part  of  the  person  making  the  payment,  is  subject  to  the 
qualification  that  the  pa}Tnent  cannot  be  recalled  when  the  position 
of  the  party  receiving  it  has  been  changed  in  consequence  of  the  pay- 
ment, and  it  would  be  inequitable  to  allow  a  recovery.  The  person 
making  the  pavment  must,  in  that  case,  bear  the  loss  occasioned  by  his 
own  negligence.  If  circumstances  exist  which  take  the  case  out  of 
the  general  rule,  the  burden  of  proving  them  rests  upon  the  party 
resisting  their  payment. 

The  rule,  with  its  limitation,  has  come  under  discussion  in  several 
recent  cases  in  this  court,  and  it  is  unnecessary  to  restate  the  grounds 
upon  which  it  rests.     Union  Nat.  Bank  v.  Sixth  National  Bank.  -43 


516  MAYER    V.    MAYOR.  [BOOK    II. 

X.  Y.  45*2;  Duncan  r.  Berlin,  4(1  X.  V.  (585;  Lawrence  v.  American 
Xational  Bank,  54  X.  Y.  432;  Xational  Bank  of  Commerce  v.  Xa- 
tional  Mechanics'  Banking  Association.  55  X'.  Y.  211. 

Tlie  plaintiff,  who  was  the  owner  of  lot  28,  in  block  98,  on  Fifty- 
first  strt-t't,  in  the  City  of  Xew  York,  was  assessed,  on  tlie  i)th  day  of 
January,  1871,  for  the  expense  of  paving  the  street,  and  the  assess- 
ment was  confirmed  and  became  a  lien  on  the  premises.  He  after- 
wards received  a  notice,  issued  from  the  bureau  of  collection  of 
assessments,  directed  to  the  owner  of  the  adjoining  lot  (27),  stating 
that  an  assessment  had  been  made  thereon  for  the  inijirovement,  and 
the  amount  of  the  same,  and  notifying  the  person  to  whom  it  was 
addressed  that  payment  of  the  assessment  would  be  expected  to  be 
made  l)y  a  time  .stated.  The  plaintiff,  supposing  that  the  notice 
related  to  an  assessment  on  his  lot,  afterwards,  and  ])efore  the  time 
named  for  the  payment,  went  to  the  olUce  of  the  collector  of  assess- 
ments and  presented  the  notice  and  paid  the  assessment  therein  men- 
tioned to  the  proper  officer  and  took  his  rec'ij)t.  On  subsecpiently 
ascertaining  the  mistake  he  presented  a  claim  for  repayment  to  the 
comptroller,  and  the  same  not  being  allowed,  brought  this  action  to 
recover  the  sum  so  paid  by  him. 

The  circumstances  bring  the  case  within  tlie  general  rule,  which 
authorizes  a  recovery  for  money  paid  by  mistaki*.  The  plaintiff  was 
not  liable  to  pay  the  assessment  on  lot  27,  and  he  paid  it  in  ignorance 
of  fact,  supposing  that  the  notice  related  to  the  a.<sessment  on  lot  28, 
and  intending  to  pay  the  a.ssessment  on  his  own  j>r('mis(\s.  It  does  not 
appear  that  the  assessment  on  lot  27  was,  in  fact,  cancc^lbvl  of  record, 
or  that  the  evidence  that  the  lien  was  discharged,  authorized  to  be 
given  by  section  16,  chapter  579  of  the  Laws  of  1853,  was  required 
or  was  furni.shed.  If  an  entry  was  made  of  its  ]>ayment,  no  reason 
is  shown  why,  upon  discovering  the  mistake,  it  might  not  have  been 
corrected,  and  the  collection  enforced  against  the  person  liable  to  pay 
the  a.ssessment,  or  upon  his  default,  by  a  sale  of  the  land  in  respect 
to  which  the  asse.«wment  was  made.  It  does  not  appear  that  there  has 
be«'n  any  change  of  title  to  lot  27,  and  the  rights  of  snbsecpient  pur- 
chasers are  not  in  question.  The  plaintiff  did  not  intend  to  discharge 
the  liability  of  fhe  owner  of  that  lot  when  he  paid  the  assessment, 
and  altliough  the  money  was  received  by  tlie  city  in  discharge  of  the 
assessment  on  lot  27,  it  could,  on  being  apprised  of  the  mistake,  have 
returned  the  money  to  the  plaintiff,  and  been  restored  to  its  original 
position.'     The  Mayor  v.  Colgate,  12  X.  Y.  140. 

Mn  Curncn  v.  Mayor  (1880)  70  N.  Y.  511,  .'il.').  Danfortii,  I.,  in  connnrnt- 
injf  ujM»n  tin-  ciiHt',  nnyH:  "And  it  may  well  Im-  tliat  if  it  luui  tlirn*  :i|)|H'arc(l 
that  aftor  the  miHtnkrn  payment  tlir  property  aHSpHspd  had  pawHed  into  the 
handH  of  one  htiyine  5"  ^ood  faith,  and  for  value,  and  that  the  perHon  aHHesned 
had  Iwrome  inHoh'ent  Hinre  the  payment,  the  defendant  would  have  been  per- 
mittefl  to  retain  the  money." — Ed. 


CHAP.    II.]  MAYER   V.    MAYOR.  517 

The  city  received  the  money  upon  a  lawful  demand,  but  from  a 
person  who  was  not  legally  liable  to  pay  it,  and  we  do  not  find  that 
the  circumstance  that  money  paid  by  mistake  is  received  upon  a  valid 
claim  in  favor  of  tlie  recipient  against  a  third  person  prevents  a 
recovery  back,  provided  the  claim  against  the  party  who  ought  to  pay 
it  is  not  thereby  extinguished  or  its  collection  prevented.  43  X.  Y. 
452 ;  14  id.  433. 

The  claim  is  made,  on  behalf  of  the  city,  that  the  money  collected 
on  local  assessments  is  not  collected  for  the  benefit  of  the  city,  or 
received  into  the  treasury  for  its  use;  and  that  the  city  in  making 
local  improvements  acts  for  the  benefit  and  in  behalf  of  the  owners 
of  the  land  on  which  the  assessment  is  made.  The  paving  of  streets, 
the  construction  of  sewers,  and  works  of  like  character  within  the  city, 
are  spoken  of  as  local  improvements,  but  they  are  instituted  l)y  the 
corporation,  and  are  public  improvements  as  strictly  as  any  other 
improvements  undertaken  by  the  corporation.  The  statute,  in  view 
of  the  special  benefits  which  are  supposed  to  result  from  them  to  the 
owTiers  of  lands  near  which  they  are  made,  imposes  the  expenses 
incurred  in  making  them  in  whole,  or  in  part,  upon  the  property 
within  the  district  specially  benefited.  But  the  work  is  a  public  work. 
The  city  contracts  for  the  performance,  and,  by  chapter  397,  Laws 
of  1852,  and  subsequent  statutes,  is  authorized  to  borrow  the  money 
upon  its  bonds  to  pay  in  the  first  instance  the  expenses  incurred  in 
prosecuting  it.  The  city  treasury  is  entitled  to  ultimate  reimburse- 
ment from  the  owners  of  lands  which  may  be  locally  assessed,  and, 
upon  their  default  to  collect  the  expenses,  by  a  sale  of  the  land;  l)ut 
it  receives  the  money  collected  through  local  assessments  in  its  own 
right,  and  not  as  agent  or  depositary,  either  of  the  landowners  or  the 
holders  of  the  bonds. 

We  are  of  opinion  that  no  obstacle  to  the  plaintiff's  recovery  exists, 
and  that  the  defendant  cannot  justly  claim  to  retain  the  money 
received  under  the  circumstances  disclosed. 

The  judgment  of  the  General  Term  should  be  affirmed,  with  costs. 

All  concur. 

Judgment  afprmca.^ 

>See  also  Woolley  r.  Staler  (1883)  39  Ohio  St.  354. 

Whenever  the  consideration  fails  heeause  of  a  mistake  as  to  the  existence 
of  a  claim,  to  extinguish  which  money  is  paid,  the  plaintiff  may  usually  re- 
cover the  amount  expended.  As  where  a  plaintiff  indorsed  a  bill  to  the  defend- 
ant on  a  debt  due  the  latter,  but  the  defendant  failed  to  protest  the  bill  at 
maturity,  thereby  discliarf^ing  the  plaintiff.  He  afterwards  discovered,  as  he 
thought,  that  bill  was  void  for  not  being  stamped  as  an  English  bill  should  be. 
and  the  plaintiff,  being  of  the  same  opinion,  paid  the  defendant  the  amount 
of  the  bill.  In  reality  the  bill  was  foreign  and  so  properly  stamped.  The  plain- 
tiff was  allowed  to  recover.  Milnes  r.  Duncan  (1827)  0  B.  «S:  C.  071:  and  see 
Bell  V.  Gardiner   (1842)   4  M.  &  G.  11. 

In  Mills  1-.  Alderbury  Union  (1849)   3  Ex.  500.  tlie  plaintiff  was  surety  for 


518  CALKIXS    V.   GRISWOLD.  [BOOK   II. 

CALKIXS  I'.  GRISWOLD. 

Supreme  C'oiut  of  New  Yuuk,  1877. 

[11  II till,  --ios.] 

Appeal  from  a  judgment  in  favor  of  the  defendant,  entered  on 
the  report  of  a  referee. 

The  action  was  brought  to  recover  money  luid  and  received  by 
the  defendant,  which  was  alleged  to  belong  to  the  plaintiffs,  and 
also  for  money  alleged  to  have  been  paid  by  the  plaintiffs  to  the 
defendant  Ijy  mistake.  The  defence  set  up  was  an  accord  and  satis- 
faction. The  amount  claimed  by  the  plaintiffs  was  over  $160.  The 
referee  reported  in  their  favor  for  thirty-four  dollars  and  twenty-two 
cents  only  (l)eing  twenty-seven  and  one-half  dollars,  with  interest), 
and   the  defendant  entered  judgment  for  his  costs,  less  that  sum. 

The  essential  facts  were:  On  an  accounting  between  the  plaintiff 
and  the  defendant  for  a  running  account  and  for  the  purchase  of 
grapes  by  the  former  from  the  latter,  as  neither  party  knew  the 
weight  of  the  grapes  and  crates,  they  agreed  that  the  weight  was 
65,600  pounds,  and  the  plaintiff  settled  accordingly.  As  a  matter 
of  fact  the  total  weight  of  the  grapes  was  5o,5)oi)  pounds.  The  plain- 
tiff sued  for  excess  paid  on  the  false  estimate,  and  also  for  an  over- 
payment by  reason  of  an  error  in  the  mere  computation  on  the  first 
payment.* 

The  referee  decided,  as  matter  of  law,  that  the  agreement  of 
the  tenth  of  March  oj)erated  as  an  aecord  and  satisfaetion  in  respect 
to  the  .several  items  included  therein,  and  precluded  the  j)laintiff  from 
recovering  the  excess  paid  on  account  of  the  grapes,  but  that  the 
overpayment  of  twenty-seven  dollars  and  fifty  cents  having  occurred 
in  con.<e(juence  of  the  mistake  which  arose  in  determining  the  sum 
necessary  to  make  satisfaction  u|)on  the  account,  the  plaintiffs  are 
entitled  to  recover  the  same,  with  interest. 

A.  aw  treasuror  of  dffondunt  cnnipany,  whom  he  paid  for  money  supposed  to 
have  been  reeeived  Uy  A.,  Imt  wliit-h  in  reality  was  reeeivetl  by  a  firm  of  which 
A.  was  a  momher.  The  eomt  held  that  tlie  nhiintitF  should  recover,  not  heinj? 
a  Hurety  for  the  firm,  imt    f"r   A.   jloiie. 

And  MO  in  IV  llalin  i-.  Hartley  (ITsr,)  1  T.  H.  .U:?.  the  defendant  took  out 
a  p<dicy  of  insurance  on  a  shiji  and  caryo.  III.-  policy  contained  a  warranty 
that  vcHsd  had  sailed  from  l.iverftool  manni-d  with  fifty  men.  In  reality  it 
Hailed  with  only  forty-six.  hut  tor)k  on  six  more  at   .\nf;lesea.  six  hours  after. 

It  wan  admitted  that  the  insured  was  not  prejudi 1  hy  the  breach,  but  having 

paid  in  ijrn">"n"'"f  "^  '♦•  '•<*  "'"*  permitted  t..  re.nv.r  l'"r  u  «rili<ism  of  case 
HOT  Keener'H  Treatise,  .")!. 

'A  shortened  statement  of  facts  has  been  subHtitutcd  for  tlial  of  llic  report, 
and  argumcntn  of  coun.Hcl  arc  omitted. — Ed. 


CHAP.    II.]  CALKINS    V.    GRISWOLD.  519 

Smith,  J.  It  is  an  elementary  principle  of  law,  as  well  as  of  the 
plainest  equity,  that  where  money  is  erroneously  paid  by  one  person  to 
another,  in  consequence  of  a  mutual  ignorance  as  to  facts,  which,  if 
known,  would  have  prevented  the  payment,  the  money  so  paid  may 
be  recovered  back.  Burr  v.  Veeder,  3  Wend.  412.  An  error  of 
fact  takes  place,  either  when  some  fact  which  really  exists  is 
unknown,  or  some  fact  is  supposed  to  exist  which  really  does  not 
exist.  Mowatt  v.  Wright,  1  id.  355,  360.  A  contract  made  upon 
an  assumed  state  of  facts,  as  to  which  there  is  a  mutual  mistake, 
may  be  rescinded  on  discovering  the  mistake,  and  the  party  paying 
money  upon  it  may  recover  it  back.  This  principle  applies  to  every 
form  of  contract,  express  or  implied,  including  an  account  stated,  and 
an  accord  and  satisfaction.  The  principle  of  an  accord  and  satisfac- 
tion is,  that  a  party  who  has  a  legal  right  of  action  against  another 
may  accept  of  some  other  legal  thing  in  discharge  of  his  claim.  But 
if  the  parties  to  an  accord  and  satisfaction,  in  settling  a  claim,  act 
imder  a  mutual  mistake  of  facts,  there  is  nothing  in  the  nature  of  the 
transaction  which  prevents  a  court  of  law  from  correcting  the  mistake 
or  relieving  from  its  consequences,  in  a  proper  action  for  that  purpose. 
In  Wheadon  v.  Olds,  20  Wend.  174,  the  principle  was  applied  to  a 
case  somewhat  analogous  to  this.  There,  the  defendant  agreed  to 
sell  to  the  plaintiff  from  sixteen  to  twenty  hundred  bushels  of  oats, 
at  forty-nine  cents  per  bushel.  The  delivery  of  the  oats  was  com- 
menced by  removing  them  from  a  storehouse  to  a  canal  boat; 
tallies  were  kept,  and  when  the  tallies  amounted  to  500,  it  was  pro- 
posed to  guess  at  the  remainder;  and  after  a  while  it  was  agreed  to 
call  the  whole  quantity  1,900  bushels,  and  the  plaintiff  accordingly 
paid  for  that  quantity  at  the  stipulated  price.  When  the  oats  came 
to  be  measured  it  was  ascertained  that  there  were  only  1,488  bushels 
delivered.  It  was  then  found  that  the  mistahe  had  happened  by 
both  parties  assuming  as  the  basis  of  the  negotiation  fixing  the 
quantity  of  1,900  bushels,  that  500  bushels  had  been  loaded  in  the 
boat  at  the  time  when  they  undertook  to  guess  at  the  residue, 
whereas,  in  fact,  only  250  bushels  had  been  loaded — the  tallies 
representing  half  bushels  and  not  bushels — and  that  the  parties 
supposed  that  the  quantity  loaded  was  not  a  quarter  of  the  whole. 
The  action  was  for  money  had  and  received,  to  recover  back  the 
excess  paid  by  mistake.  On  tlio  trial,  the  defendant  proved  by  one 
witness  that  the  plaintiff  said  th:it  lie  would  take  the  oats  at  1,900 
bushels,  hit  or  miss,  and  by  another  that  he  had  acknowledged  that 
he  took  the  oats  at  that  quantity  at  his  own  risk.  He  further 
proved  that  before  the  boat  left  the  storehouse,  on  dissatisfaction 
being  expressed  by  a  friend  of  the  plaintiff  who  was  to  advance  the 
money  for  him,  as  to  tbe  mode  of  ascertaining  the  quantity,  he  told 
them  if  they  were  dissatisfied  with  the  quantity,  to  put  the  oats 
back  into  the  storehouse  and  pay  him  for  his  trouble.     The  plain- 


520  CALKINS    V.    tilt  IS  WOLD.  [bOOK    U. 

tiff  recovered  a  verdict,  and  the  defendant  moved  for  a  new  trial, 
which  was  denied.  Cowen,  J.,  delivering  tlie  opinion  of  the  court, 
baid  that  the  mistake,  as  proved,  went  not  only  to  the  (piantity 
measured,  but  the  jury  found,  under  the  charge,  that  relatively  it 
influenced  the  entire  agreement  to  take  the  oats  at  1,900  bushels; 
and  that  being  the  case,  tlie  learned  judge  .said  he  was  not  aware  of 
any  case  or  dictum,  that,  because  part  of  the  agreement  was  to  take 
at  the  party's  own  risk,  or,  as  the  parties  expressed  it,  hit  or  miss, 
it  therefore  formed  an  exception  to  the  general  rule.  The  agree- 
ment to  risk  was,  pro  tauto,  annulled  by  the  error.  The  foundation 
of  the  arrangement  to  take  the  plaintiff's  risk  was  a  misreckoning, 
one  number  being  put  instead  of  another,  "which,"  says  Domat 
(pi.  12),  "is  a  kind  of  error,  in  fact  different  from  all  other  errors, 
in  that  it  is  always  repaired." 

In  the  present  case  the  referee  has  not  found,  indeed,  in  terms, 
that  the  parties  acted  under  a  mutual  mistake,  but  he  has  found  that, 
at  the  time  of  the  accounting,  they  did  not  know  or  recollect  accu- 
rately the  weight  of  the  grapes  or  the  crates;  that  they  agreed  to 
call  the  crates  (500  pounds,  and  the  grapes,  after  deducting  the  crates, 
G5,0()0  pounds,  and  that  in  fact  the  whole  quantity  of  grapes  deliv- 
ered was  55,959  pounds.  He  has  not  found  that  there  was  any  dis- 
pute as  to  the  (piantity  of  grnj)cs,  and  the  uncontradicted  testimony 
shows  there  was  no  disjnite  on  that  subject,  the  plnintiff  having  sug- 
gested the  quantity,  and  the  defendant  having  agreed  to  it  without 
question.  There  was  a  difference  between  them  as  to  the  weight  of 
the  crates,  but  the  defendant  compromi.sed  nothing  in  that  respect, 
as  his  claim  was  acceded  to  l)y  the  plaintiff.  There  is  no  finding 
inconsistent  with  the  fact  of  a  mutual  mistake,  and  we  are  therefore 
to  look  into  the  evidence  to  see  what  it  estaldishes  in  that  respect. 
There  is  uncontnidicted  evidence  in  the  case,  which  leaves  no  doubt 
that  C'aulkins.  at  lenst,  acted  under  a  mistake  as  to  the  weight  of  the 
grapes.  He  so  testifies,  and  upon  no  other  reasonable  theory  can 
his  proposal  be  accounted  for  to  pay  for  several  thousand  pounds 
more  than  had  been  delivered.  It  is  ecpudly  manifest  from  the  evi- 
dence tliat  the  defendant  al.'^o  was  mistaken  as  to  the  quantity  of  the 
grapes,  unless  he  was  [)racticing  a  fraud  u|)on  Caulkins.  ThiTC  is 
no  ground  for  the  sugg<'stion  that  he  merely  kept  silence  on  the 
subject.  Caulkins  testified  that  the  defendant  said  he  thought  the 
figures  were  about  right,  iis  they  were  about  as  he  had  them  at  home. 

Th<'  defendant  did  not  deny  the  statement,  and  he  himself  te.sti- 
fied  thiit  when  the  jtlnintiff  iinnnnneed.  nfter  fi</uring  a  long  time, 
that  ho  made  the  defendants  account  to  l)e  05,000  and  some  pounds, 
the  defcnd;int  replied  that  "may  b«'  that  was  right,"  altho\igh  pro- 
posing at  the  .same  time  to  examine  the  tnatter  before  settling.  If 
he  knew  the  correct  amount  at  that  time,  his  own  account  of  the 
conversation  shows  that  he  was  not  acting  in  good  faith.     There  is 


CIIAP.    11. J  CALKINS    V.    GRISWOLD.  521 

some  evidence  of  iiis  subsequent  declarations,  tending  to  show  that 
"he  did  know  the  true  amount  at  the  time  of  the  accounting  and 
that  he  took  advantage  of  the  mistake  of  Caulkins,  but  as  the  report 
of  the  referee  is  silent  upon  the  (juestion  of  fraud,  it  is  to  be  implied 
that  his  (K'cision  ujjon  that  issue  was  adverse  to  the  plaintiffs,  and 
there  is  not  such  a  decided  preponderance  of  evidence  the  other 
way  as  to  lead  to  the  conclusion  that  the  implied  finding  is  against  the 
weight  of  evidence.  The  only  other  conclusion,  then,  warranted  by 
the  evidence,  is  that  the  defendant  participated  in  the  mistake  of 
the  plaintiff  as  to  the  quantity  of  grapes.  The  mistake  was  mutual, 
and  it  entered  into  the  accord  and  satisfaction.  The  parties 
"jumped  accounts"  as  the  defendant  expressed  it,  upon  the  mistaken 
assumption  that  the  quantity  of  grapes  delivered  was  65,000  pounds. 
But  for  that  mistake,  the  sum  fixed  upon  would  not  have  been 
agreed  to.  And  as  there  was  no  dispute  about  price  or  quality,  it 
is  apparent  that  if  the  parties  had  known  the  correct  quantity  at 
the  time,  they  would  have  agreed  on  the  sum  which  it  now  appears 
was  the  true  amount  owing  upon  the  contract.  The  accord  is  not  a 
bar  to  the  correcting  of  a  mistake  by  which  the  accord  was  induced. 

The  referee  very  properly  held  the  plaintiffs  entitled  to  recover 
the  money  paid,  in  consequence  of  the  mistake  made  in  computing  the 
amount  due  upon  the  basis  of  the  accord.  He  should  have  gone 
further  and  allowed  to  the  plaintiffs  the  money  paid  by  mistake  for 
grapes  in  excess  of  the  quantity  delivered.  The  same  principle 
which  corrects  one  mistake  will  correct  the  other.  In  either  case 
it  is  unconscientious  that  the  defendant  should  retain  the  money:  it 
equitably  belongs  to  the  plaintiffs,  and  no  rule  of  law  stands  in  the 
way  of  their  recovering  it. 

Judgment  reversed  and  new  trial  ordered  before  another  referee, 
costs  to  abide  event. 

Present — Mullin,  P.  J.,  Talcott  and  Smith,  JJ. 

Judgment  reversed  and  new  trial  ordered  before  another  referee, 
with  costs  to  abide  event. ^ 

'The  law  is  frenorally  in  accord  with  the  principal  case. 

As  to  a  plaintiff  recovering  money  overpaid  to  tiie  assignees  of  a  bankrupt, 
see  ]\ralsolm  i'.  Fullerton  (17SS)  2  T.  R.  fi4.=i. 

\Mu>re  defendant  had  recovered  from  one  insurance  company  the  full 
amount  of  insurance,  and  then  from  the  plaintitf  company  the  amount  of  its 
policy,  the  whole  heinp  greater  than  the  value,  the  i)laintiff  was  permitted  to 
recover  his  proportionate  amount  of  the  excess.  Irving  r.  Richardson  (IS:?]) 
2  B.  (St  A.  19.-?.  See  also  Bruce  r  Jones  (isr.3)  1  H.  &  C.  TOO:  Kenny  r.  Clark- 
son  (ISOO)  1  .Tohn<.  .3S;i:  Watson  r.  Ins.  Co.  (1811)  3  Wash.  C.  C.  1:  Burnand 
V.  Rodocanachi  (1S82)  L.  R.  7  App.  Cas.  3.33;  Clarke  r.  Western  Assurance  Co. 
(1892)   14G  Pa.  St.  ,"501. 

So.  if  one  partner  sells  to  another  subject  to  a  deduction  on  a  contingencT, 
which  occurred,  but  of  which  the  partner  paying,  o\vning  to  his  own  negligence, 


522  BANK    OF    OMAHA    V.    THE    MASTIX    BANK.  [BOOK   II. 


FIKST  NATIONAL  I'.ANK  oF  OMAHA  v.  TllK  MASTIN  BANK 
AM)  K HUSKY  C0ATE8,  ASSIGNEE. 

ClHCUIT  COUKT  OF  THE  UNITED  STATES,   1880, 
[2  McCrari/.  438. J 

This  case  is  submitted  to  the  court  for  final  decision  upon  an  agreed 
statement  of  facts,  from  which  it  appears  that  the  phiintilT  and  the 
Mastin  Hank,  between  July  1  and  August  1,  187S,  liad  maintained  a 
correspondence  and  account,  and  had  remitted  to  one  another  divers 
sums  of  money,  and  also  demands,  notes,  bills,  and  accounts  against 
third  parties  for  collection  and  credit.  On  the  twenty-seventh  of 
.\ui:ust,  1.S78,  the  Mastin  Bank,  then  having  a  tonsiderahie  balance 
in  the  hands  of  the  plaintill",  directed  the  plaintill"  to  remit  said  balance 
to  the  Metropolitan  National  Bank  of  New  York,  to  the  credit  of  the 
Mastin  Bank,  in  even  hundnMls  of  dollars.  At  the  time  the  books 
of  the  phiintitr  showed  a  balanc"  due  the  Mastin  Bank  of  a  little  more 
than  $8,800;  and  accordingly  the  plaintiff  remitted  to  the  said  Metro- 
politan National  Bank  of  New  York  $8,800,  to  be  placed  to  the  credit 
of  the  Mastin  Bank.  Prior  to  that  time,  however,  the  plaintiff  had 
sent  to  the  Mastin  Bank  for  colleftion  a  draft  drawn  l>y  one  Faut  for 
$3,141,  whieli  said  .Mastin  Bank  had  collected  on  the  seventeenth 
of  July,  anil  ilnly  credited  the  plaintiff  on  its  l)ooks;  but  the  plaintiff 
by  mistake  omitted  to  eharge  the  said  sum  to  the  "Mastin  Bank,  and 
therefore  sent  to  the  Metropolitan  National  Bank  a  larger  amount  of 
money  than  was  duo  to  the  Mastin  Bank.  \  few  days  after  this 
transaction  the  Mastin  Bank  failed  and  made  an  a.ssignment  to  the 
respondent.  Kersey  Coates,  assignee,  under  the  laws  of  the  state  of 
Missouri,  transferring  to  him  all  its  property  and  credits  of  every 
kind  wliatsoever.  The  assignee  demanded  and  received  from  the  Met- 
ropolitan National  Bank  the  money  held  l)y  it  to  the  credit  of  the 
Mastin  Bank,  including  the  .Mim  whieb  plaintiff  had  sent  to  it  by 
mistake,  and  which  it  is  agreed  ainounts,  less  certain  credits,  to 
$l,Hl(;.ti2.  Plaintiff,  as  .soon  as  advis(»d  of  the  mistake,  demanded 
the  return  of  the  money  from  the  Mastin  Bank,  as  well  as  from  the 
Metropolitan  National  Bank,  and  also  made  the  sanu'  detmmd  upon 
the  assignee  after  his  appointtiient. 

MfCuAUV.  Circuit  Judge.    The  fact  is  admitted  by  the  agreed  state- 

waH  i(fnornnt,  lip  may  rorovor  Uw  anunint  ho  paid.  r<iwnHonil  v.  f'rnwdr  (ISOO) 
8  C  H.  N.  S.  477:  and  net-  IvinMon  r.  Hut  ton  (187H)  1»8  U.  S.  70. 

If,  owinjf  to  ft  miHtakc,  monoy  !«  paid  in  oxcohh  of  an  award,  it  iiiar  Ik-  recov- 
ered.    Mayor  r,  Krlwn   (  \MH)   .'{  .Mil..    \pp.  'J.',.'). 

If  inoni-y  i-t  paid  l»y  iimttial  iiii><takc,  wliolly  witlHmt  con-'idoralion,  it  may 
likewiHf  Im>  rwovcrotl.     Stewart  r.  Kindol   (1H!)0)    15  Colo.  530. — Ki). 


CIIAI'.    II. I  BANK    OF    OMAHA    r.    THE    MASTIX    BANK.  523 

inent  that  plaintiff  sent  to  tlie  Metropolitan  National  Bank  in  Xew 
York,  to  be  ])laced  to  the  credit  of  the  Mastin  Bank,  the  money  now 
in  controversy  in  consequence  of  a  mistake  of  fact.  When  the  plain- 
tiff stated  the  account  in  order  to  ascertain  the  sum  to  be  sent  to  the 
New  York  Bank,  one  item  thereof  was  omitted  by  reason  of  an  error 
of  the  accountant,  or  because  the  bank  had  not  received  notice  at  that 
time  of  the  collection,  by  the  Mastin  Bank,  of  the  Faut  draft.  The 
result  of  the  transaction  was  that  the  plaintiff  sent  to  the  Metropolitan 
National  Bank,  to  be  credited  to  the  Mastin  Bank,  more  money  than 
was  due  to  the  latter ;  or,  in  other  words,  there  was  placed  in  the  hands 
of  said  Metropolitan  National  Bank  $1,816.22  which  did  not,  in 
equity,  belong  to  the  Mastin  Bank.  It  was,  however,  placed  to  the 
credit  of  that  bank,  and  after  the  assignment  it  passed  into  the  hands 
of  the  assignee. 

As  between  the  original  parties  to  this  transaction  it  cannot  be 
claimed  that  the  Mastin  Bank  acquired  any  interest  in  or  right  to  the 
money  now  in  dispute.  It  is  a  principle  of  equity  too  plain  to  require 
a  citation  of  authorities  to  support  it,  that  where  one  person,  by  mis- 
take, delivers  to  another  money  or  property  without  consideration,  he 
may  recover  it  back ;  and  where  the  identical  property  cannot  be  found 
and  recovered,  equity  permits  him  to  pursue  and  recover  the  proceeds 
wherever  he  can  find  them,  unless  they  have  pas.sed  into  the  hands  of 
an  innocent  holder.  Where  both  parties  intended  the  delivery  of  a 
particular  sum  of  money,  and  where,  by  the  mistake  of  both,  a  larger 
sum  was  delivered,  the  party  receiving  the  excess  becomes,  in  equity, 
a  trustee  for  the  real  owner  thereof  and  bound  to  deliver  it  upon 
demand  to  him.^  The  ground  upon  which  this  rule  proceeds  is,  that 
mistake  or  ignorance  of  facts  is  a  proper  subject  of  relief  when  it 
constitutes  a  material  ingredient  in  the  contract  or  acts  of  the  parties, 
and  disappoints  their  intention  by  a  mutual  error,  or  where  it  is  in- 
consistent with  good  faith,  and  proceeds  from  the  violation  of  the 
obligations  which  are  imposed  by  law  upon  the  conscience  of  either 
party. 

It  is  equally  clear  that  the  plaintiff  has  a  right  to  relief  against  the 
assignee  wiio  claims  by  a  general  assignment  under  the  laws  of  Mis- 
souri, for  the  reason  that  the  assignee  is  deemed  to  possess  the  same 
equities  only  as  the  debtor  himself  would  possess. 

It  is  my  opinion  that  upon  the  principles  of  equity  the  plaintiff  is 
entitled  to  recover  the  sum  of  money  in  controversy  in  this  suit,  and 
decree  will  be  entered  accordingly. 

'Conf.  T'tica  Hank  v.  Van  Gieson.  IS  Johns.  435. 

It  was  held  in  I.anih  r.  Cranfield,  43  L.  J.  Ch.  408.  by  Jcssel.  M.  R..  that  the 
sole  remedy  for  the  recovery  of  money  so  paid  was  at  law.  See.  however.  Binp- 
iuiiu  r.  Uinsham.  [(174S)  1  Ves.  Sr.  12l)]  ;  Henderson  r.  Overton.  2  Yerg.  304: 
Ncal  V.  Read.  7  Bax.  334. — Judge  Keexer's  note. — Ed. 


524  IILLL    r.    liANX    Oi'    SOLTli    CAHULl.NA.  [BOOK    II. 


HULL  r.  BANK  OF  SOUTH  CAROLINA. 

Court  of  Ai'1'i;al.s  of  Soltii  Carolina,  1838. 

[DiuUcij  (.S.  C),  '.>:)!>.] 

Before  O'Xeall,  J.,  at  Charleston,  May  Term.  1837. 

This  action  was  brought  to  recover  money  paid  l)y  mistake  to  the 
defendant. 

The  case  proved  was  that  one  Ilopton  was  indebted  to  tlie  defend- 
ant in  the  sum  of  $78.  The  defendant  being  informed  tluit  Hoj)ion 
ha«l  money  in  the  Bank  applied  to  him  for  a  check,  and  he  was  told 
both  by  him  and  another  ])erson  that  Ilopton  had  no  funds  there.  The 
defendant,  however,  persisted,  and  lloj)ton  at  last  gave  the  cheek, 
and  the  defendant  receipted  his  account  in  full.  He  presented  tin 
check  at  the  Hank,  and  it  was  paid.  On  the  evening  afterwards,  it  was 
discovered  that  Hoidon  had  before  the  j)ayment  of  this  check  drawn 
out  all  his  funds.  The  i)ayment  was  made  on  the  assurance  by  the 
Book-keejjcr,  that  Hopton's  account  justified  it,  though  he  did  not 
refer  to  the  ledger,  which  would  have  prevented  the  mistake. 

On  the  ne.xt  day  notice  of  it  was  given  to  the  defendant  and  he 
was  asked  to  correct  it.  and  refused  to  do  so. 

A  motion  for  non-suit  was  made  and  dverruled.  an<l  the  jury  were 
instructed  that  if  a  mistake  in  fact  had  l)een  made  by  the  Bank  in 
I)aying  the  money  they  were  entitled  to  recover  it  back;  and  that 
there  had  been  a  mistake,  unless  they  could  infer  from  the  evidence 
that  the  money  was  j)aid  by  the  bank  in  honor  of  the  drawer  of  the 
check. 

They  found  for  the  |)IaintifT. 

The  defenihmt  moved  the  Court  of  Apj>eals  for  a  non-suit,  on  the 
grounds: 

1st.  Because  the  drawer  of  a  Bank  check,  after  the  same  had  been 
paid  on  presentment,  can  have  no  recourse  against  the  payee. 

I'd.  Because  there  was  no  legal  evidenci'  that  the  drawer  had  not 
funds  in  the  Bank  at  the  time  it  was  presented,  and  in  absence  of  such 
evidence  the  plaintiff  had  n<>  right  to  recover. 

3d.  Beoiii.we  there  was  no  tender  proved  of  the  cheek  to  the  defend- 
ant, and  that  having  released  his  account,  he  was  de|)rive(l  of  the  only 
proof  of  his  debt  by  the  act  of  the  plaintiff. 

•Ith.  Because  no  credit  is  given  to  the  payi-e  of  a  check  liy  the  Bank; 
an«l  then'  is  no  privity  betwei-n  them. 

;\nd  f«ir  a  new  trial — 

1st.  BccauHC  the  judge  charged  tbr  jury  that  tiie  j)l;iintifT  was  en- 


ClIAI'.    11.  I  irULL    r.    IJAXK    OF    SOUTH    CAROLINA.  525 

titled  to  recover  in  iiiiv  event,  except  they  believed  that  the  plaintiff 
intended  to  make  an  advance  to  the  drawer  of  the  check. 

2d.   Because  the  verdict  is  contrary  to  the  law  and  the  evidence. 

Butler,  J.,  delivered  the  opinion  of  the  court. 

The  presiding  judge  held  that  if  a  mistake  in  fact  had  been  made 
by  the  Bank  in  paying  the  money,  they  were  entitled  to  recover  it 
back  in  an  action  for  money  had  and  received. 

This  question  is  to  be  decided  rather  Ijy  authority  than  general 
reasoning  on  the  subject.  No  part  of  a  commercial  community  is  more 
interested  in  commercial  usages  than  Banks,  and  they  cannot  com- 
plain when  they  are  required  to  strictly  conform  to  them.  They 
cannot  always  guard  against  fraud  and  impositions,  but  they  may 
against  mistakes,  depending  on  an  inspection  of  their  own  books  and 
accounts.  Mistakes  may  be  prevented,  which  cannot  be  remedied. 
They  accepted  and  paid  the  check  presented  by  the  defendant,  for 
and  on  account  of  llopton  the  drawer,  whose  money  they  had  kept 
for  his  convenience  and  accommodation.  The  privity  of  contract 
w'as  between  them  and  their  customer  Hopton,  and  not  between  them 
and  one  who  may  have  happened  in  the  course  of  dealing  to  present 
a  check  drawn  by  Hopton.  In  the  case  of  Levy  v.  The  U.  S.  Bank, 
4  Dallas,  234,  the  {plaintiff  presented  a  bill  of  exchange;  the  Bank 
gave  the  plaintiff  credit  on  the  books,  believing  that  the  bill  was 
genuine ;  the  bill  turned  out  a  forgery,  and  the  Bank  cancelled  the 
credit ;  the  plaintilf,  however,  contending  that  he  was  entitled  to 
recover  the  money,  because  the  Bank  had  duly  accepted  the  papers, 
and  had  done  that  which  was  equivalent  to  payment.  The  principle 
difhculty  in  the  case  was,  whether  the  credit  in  the  books  amounted 
to  payment;  and  it  was  held  by  the  court  that  it  did,  and  the  plaintiff 
recovered.  It  seemed  to  have  been  conceded  that  if  the  Bank  had  paid 
the  money,  there  w^as  no  doubt  of  Levy's  right  to  retain  it.  In  the 
case  of  Price  v.  Xeale,  3  Burrows,  1354,  the  defendant  accepted  a 
forged  bill ;  Lord  Maxsfield  said  it  was  an  established  principle  that 
once  a  drawer  of  a  l)ill  had  accepted  it,  he  could  not  refuse  to  pay;  or 
once  having  paid  it,  could  not  recover  it  back;  unless  there  was  fraud 
on  the  ])art  of  the  endorser  who  procured  the  acceptance.  And  in 
Jeneys  v.  Fawler,  2  Strange,  94fi,  it  was  held  that  once  a  hill  has  been 
accepted,  it  is  not  necessary  to  prove  the  hand  writing  of  the  drawer, 
for  the  acceptor  was  liable  to  the  payee. 

The  question  in  the  above  cases  arose  on  bills  of  exchange,  and 
it  is  attempted  to  distinguish  them  from  bank  checks.  A  Bank  check 
has  all  the  characteristics  of  bills  of  exchange,  and  cannot  be  dis- 
tinguished from  them.  Indeed  they  perform  not  only  all  the  offices 
of  bills,  but  are  more  generally  used  for  the  transfer  and  payment  of 
monies.  They  are  mercantile  agents  which  should  not  be  crippled 
in  their  daily  and  hourly  operations.  Before  one  reaches  the  Bank 
after  it   has  been   drawn,   it   may   have  paid   and   discharged   many 


526  HULL    V.    HANK    OF    SOrTH    CAKOLINA.  [bOOK    II. 

debts,  and  after  it  has  been  accepted  and  paid,  all  the  intervening 
holders  in  general  are  discharged  from  all  liabilities  to  the  bank; 
it  becomes  then  a  transaction  between  the  Bank  and  the  drawer, 
the  Bank  not  unfrequently  paying  the  money  on  checks  of  the  drawer, 
when  in  fact  he  has  no  deposit. 

In  a  note  in  1  Camp.  4'^5,  checks  and  bills  are  both  spoken  of  and 
put  upon  the  same  footing;  and  it  seems  to  be  clearly  laid  down 
and  settled,  that  a  check  once  credited  in  the  books  of  a  bank  is  an 
acceptance,  and  subjects  the  accejjtor  to  jjayment ;  and  that  when 
the  check  has  been  actually  paid,  that  the  Bank  must  look  to  the 
drawer  for  redress,  and  not  the  payee  ;  G  East,  109  ;  Co.x  r.  Masterman, 
17  &  E.  C.  L.  R.  517.  This  case  is  decided  entirely  as  the  case  made 
by  the  presiding  judge.  For  if  the  plaintifT  by  fraudulent  contrivance 
procured  the  check  to  be  drawn,  and  obtained  the  payment  of  it  under 
false  pretences,  or  wilfully  and  designedly  suppressed  the  truth  where 
he  should  have  told  it,  he  might  be  held  lialde.  Fraud  contaminates 
all  contracts,  and  would  deprive  a  payee  of  a  check  or  bill  of  all  the 
protection  which  the  law  extends  to  those  who  act  in  good  faith. 
This  last  point  of  view  depends  on  the  facts  of  the  case,  which  may 
fairly  be  considered  by  another  jury,  under  proper  instructions  from 
the  court. 

The  motion  for  a  new  trial  is  granted.^ 

'In  Chambers  r.  Miller  (1802)  13  C.  B.  N.  S.  125.  the  defendants  as  draw- 
ers paid  a  eheck  to  tlie  j)laintifT  as  holder.  While  the  plaiiitiir  was  eonntinj? 
over  tlie  irioney,  the  ea^hier  who  paid  him,  havinji  discovered  tliat  the  drawer 
had  insullicient  funds  in  the  bank  to  meet  the  eheek,  demanded  the  money 
baek,  and  on  the  plaintiff's  refusal  to  return  it,  detained  him  foreibly  until  he 
did,  under  threat  of  arrest  for  stealing'.  The  court  held  that  title  to  the 
money  passed  to  the  plaintifl",  notwithstanding  the  cashier's  mistake.  But 
where  there  are  two  branch  banks  of  the  same  institution,  and  a  cheek  of  a 
dejidsitfir  ftf  one  is  paid  by  the  other,  the  court  declined  t<>  consider  this  pay- 
ment witliin  the  present  rule.  Woodland  v.  Fear  (1857)  7  K.  &  B.  510.  .\ 
draft  j^'iven  in  exchan<re  for  a  check  is  considered  a  payment.  First  National 
Bank  v.  Devenish   (18!I0)    15  Col.  22!). 

A  more  difhcult  <|ucstion  arises  where  no  money  chaufies  liaiids,  the  whole 
matter  beinp  one  of  debit  and  credit.  When  the  amount  has  been  entered  in 
the  pass  hook  only,  without  jrivin;;  credit  on  the  bank's  books,  it  has  been  held 
that  title  did  not  pass.  National  Cold  Bank  &  Trust  Co.  v.  Mcl)<mald  (1S75) 
51  Calif.  (»4.  But  this  principle  was  modified  in  Oddie  c.  National  City 
Bank  (1H7I)  45  N.  Y.  7.'15.  but  see  National  I'ark  Bank  r.  Manufa<turinp  Co. 
(IHJtO)  II  N.  Y.  Supp.  5:{H.  However,  if  the  check  is  deposited  anil  credited, 
both  on  the  pass  book  and  on  thr-  bank's  books,  it  is  considt-rcd  payment,  Na- 
tifmiil  Bank  of  Salem  v.  B«irnH  (IHHO)  CH  .\la.  207,  thou^ih,  of  course,  if  the 
depositor  is  (n'i't.y  of  misrepresentation  or  fraud,  there  could  l>c  no  re<'overy. 
Peterwin  v.  I'nion  National  Bank  (IKOO)  52  Ba.  St.  20fl:  Martin  r.  Morjrnn 
(  IRlO)  3  Mf>f)re  C.  I*.  035.  And  it  has  been  licld  a  fpiestion  for  the  jury  whether 
or  not,  under  a  custom  which  pave  a  limited  time  to  the  bank  for  rejecting  for 


CHAP.    II.]  LEATHER    V.    SIMPSON.  537 

In  Leather  v.  Simpson  (1871)  L.  R.  11  Equity,  398,  the  plaintiff 
accepted  and  paid  two  bills  of  exchange  on  the  faith  of  bills  of  lading, 
which,  it  was  afterwards  discovered,  were  forgeries.  In  delivering 
a  decision,  denying  tlie  plaintiff  a  recovery.  Sir  R.  Malins,  U.  C.  said : 

"As  to  the  general  law  of  misrepresentation,  I  do  not  think  it  nec- 
essary to  go  into  it  in  this  case,  because  the  law  is  perfectly  clear, 
that  if  the  court  was  warranted  in  treating  this  as  a  representation 

lack  of  funds,  a  check  was  received  as  a  deposit.  National  Bank  v.  Burkhardt 
(1879)   100  U.  S.  (i86. 

Where  the  question  arises  between  banks  operating  under  Clearing  House 
rules,  the  plaintill'  seeking  to  recover  for  bad  paper  accepted  but  returned  after 
the  time  limit  fixed  by  the  rules,  various  considerations  have  been  said  to 
control.  In  Preston  v.  Canadian  Bank  (1883)  2.3  Fed.  179,  the  court  insisted 
on  the  strict  time  limit,  refusing  a  recovery  on  a  check  returned  fifteen  minutes 
after  the  limit.  In  Merchants'  National  Bank  v.  National  Eagle  Bank  (1869) 
101  Mass.  281  [ace.  Merchants'  National  Bank  v.  National  Bank  of  Common- 
wealth (1885)  139  Mass.  513],  recovery,  on  check  returned  after  time,  was 
permitted,  the  defendant  not  having  changed  his  position;  though  the  same 
court  in  Boylston  National  Bank  v.  Richardson  (18G9)  101  Mass.  287,  under 
practically  the  same  state  of  facts,  having  found  laches,  refused  a  recovery. 
In  New  York,  recovery  seems  to  depend  on  the  laches  of  the  plaintiff  and  the 
change  of  position  of  defendant.  Allen  v.  Fourth  National  Bank  (1874) 
59  N.  Y.   12. 

In  England,  the  unprovisional  issuing  of  a  credit  slip  seems  conclusive, 
where  the  funds  are  insullkiont.  Pollard  r.  Bank  of  England  (1871)  L.  R.  6 
Q.  B.  023. 

See  note  to  Cocks  v.  IMasternian,  cited  in  Ellis  v.  Ins.  Co.,  ante. 

For  a  discussion  and  criticism  of  these  cases,  see  Keener's  Treatise,  81  et  seq. 

As  to  when  an  acceptance  may  be  retracted,  see  Dearborn  National  Bank  v. 
Carter  Rice  &  Co.  (1890)  152  Mass.  34;  Trent  Tile  Co.  v.  Dearborn  National 
Bank  (1892)  23  Atl.  423. 

As  to  the  right  of  a  drawee  to  withdraw  a  certification  once  given,  the 
courts  are  not  agreed,  though  it  would  seem  a  witlidrawal  may  be  allowed 
when  the  certification  was  owing  to  mistake  as  to  the  amount  of  funds,  and 
the  defendant  has  not  changed  his  position.  Bigelow,  Bills.  Notes  and 
Cheques,  69. 

"The  defendant  certifi(>d  the  check  in  question  as  being  good.  The  plaintiff 
took  the  check  in  the  ordinary  course  of  business,  for  value  and  in  good  faith. 
There  is  nothing  shown  to  impeach  his  title.  The  cheek  turned  out  to  l>e  a 
forgery.  It  cannot  be  questioned  that  the  bank  is  liable  to  make  good  its 
certificate  by  paying  tlie  check.  Farmers'  and  Mechanics'  Bank  r.  Butchers' 
and  Drovers'  Bank.  26  How.  Pr.  1;  Price  r.  Neal.  3  Burr.  1354:  Com'l.  &c. 
Bank  v.  First  Nat.  Bank,  30  Md.  11.  The  principle  upon  which  this  liability 
rests  is  stated  by  Hoi.T,  Ch.  J.,  in  Hern  r.  Nichols.  1  Salk.  2S0.  namely,  that 
'seeing  somebody  must  be  a  loser  by  this  deceit,  it  is  more  reason  that  he  that 
confides  in  the  deceiver  should  be  loser,  than  a  stranger,'  and  has  become  an 
established  rule  of  law  in  cases  identical  with  this." — Hngan  r.  Bank  (1872) 
64  Barb.  107.     And  see  note  in  this  point  in  17  Am.  St.  Rep.  800. — Ed. 


528  LEATHi;i{  V.  siMi'soN.  [book  II. 

by  the  Union  Bank  of  London,  as  if  they  had  said,  'We  hold  the  hill 
of  ladin<j,  which  is  a  genuine  hill  of  lading,  or  which  we  guarantee  to  he 
a  genuine  l>ill  of  lading' — then  if  they  had  so  undertaken,  and  it  turned 
out  to  be  a  bad  bill  of  lading,  it  would  have  been  money  obtained 
on  a  representation  which  was  untrue;  and  the  rules  of  this  court 
are  settleil.  tliat  when  a  representation  in  a  matter  of  business  is  made 
by  one  man  to  another  calculated  to  induce  him  to  adajjt  his  conduct 
to  it,  it  is  perfectly  immaterial  whether  the  representation  is  made 
knowing  it  to  be  untrue,  or  whether  it  is  made  believing  it  to  be  true, 
if,  in  fact,  it  was  untrue;  because  every  man  making  a  representation 
inducing  another  to  act  on  the  faith  of  that  representation  must  make 
it  good  if  he  takes  upon  himself  to  represent  that  which  he  docs  not 
know  to  be  true,  and  he  is  equally  bound  if  he  made  it  without  knowing 
it  to  be  untrue.  Therefore,  if  the  memorandum  relied  upon  had 
amounted  to  a  rc[)resentation  that  the  document  was  genuine  or  a 
guarantee,  the  conse<|uence  would  be  j)lain  that  the  plaintiffs  must 
have  been  indemnified  by  the  Union  Bank  of  London,  and  the  money 
they  have  received  must  have  ))een  returned,  because  it  was  obtained 
upon  a  rei)resentation  which  turns  out  to  l)e  untrue.  If  there  be  a 
distinction  between  this  case  and  the  cases  of  Thiedemann  r.  CJold- 
schmidt,  1  De  G.  F.  &  J.  4.  and  Robinson  v.  Reynolds,  2  Q.  B.  196, 
I  confess  it  appears  to  me  to  be  rather  more  unfavorable  to  the  plain- 
tiffs, because  in  Thiedemann  v.  fJoldschmidt  the  money  had  not  been 
paid,  whereas  here  they  elected  to  pay  the  money  on  a  rebate  of  in- 
terest before  the  bill  became  due,  which  precludes  them  from  saying 
that  it  had  not  arrived  at  maturity.  The  |)liiintifT  Beach  trusted  to 
his  own  correspondent  Shute,  tliat  he  would  not  transmit  anything 
but  a  genuine  bill  of  lading.  The  equities  between  these  parties  are 
equal;  the  parties  are  equally  innocent  in  th(>  transaction;  they  have 
all  been  imposed  upon;  but  there  is  this  difference,  that  one  of  them, 
by  the  course  of  the  transaction,  has  been  in  possession  of  the  money, 
and  I  am  at  a  loss  to  see  any  ground  upon  which  I  can  be  justified  in 
making  a  decree  that  that  money  should  be  restored.  I  can  see  no 
distinction  betwi'cn  a  bill  filed  to  liave  the  acee|)tance  delivered  up 
before  it  has  arrived  at  maturity,  and  a  bill  filed  to  have  the  money 
restored  after  the  bill  has  arrived  at  in.iturity.  or  li:i<  been  treated  as 
having  arrived  at  maturity,  and  the  ;iniount  of  it  paid. 

"Upon  these  grounds  I  am  of  opinion  that  the  l»ill  fails,  and  must  be 
dismis.«ed."' 

TonccTriititr  tliis  niHi',  Mr.  .\iiu'h  says:  "This  <m«so  rnnnot  rost  on  tlio  >;roun(i 
that  ttu-  <lcfcn(lanlH.  hy  r«'<i'iviiiir  |»aynn'nt.  n-linquislird  ri^'tits  af^niinst  prior 
partioH,  for  licintr  ap-ntw  for  <<.ll(cliiin  «)f  I'Tiion  Hank.  \vlii<h  was.  in  turn, 
OK'-nt  ffir  S<-lni<har»lt  4  Sons,  tlifv  rdiild  sin-  citlior  on  tho  hills  of  Pxchanf;o,  in 
any  rv«-nt.  To  tho  mmo  vtTwt  is  HolTmann  v.  Hank  of  Mihvaiikop  [spp  infra.]. 
In  tho  followintr  onnon.  whi-n  Iho  drnwor's  Hijrnnturr  wuh  forpod.  the  holder 
who  had  <fdl«Tted  wom  nllowrd  to  retain  the  money,  although  he  gave  up  no 


CHAP.    II. J  HOFFMAN    &    CO.    V.    BANK    OF    MILWAUKEE.  529 

In  Hoffman  iC-  Co.  v.  Bank  of  Milwaukee  (1870)  Vt  Wall,  181, 
under  the  same  I'act.^^,  the  Supreme  Court  of  the  United  State.s  reached 
the  same  result,  and  by  Clu'eoud,  J.,  said: 

"Money  paid  under  a  mistake  of  facts,  it  is  said,  may  be  recovered 
back  as  having  been  j)aid  without  consideration,  but  the  decisive 
answer  to  that  suggestion,  as  applied  to  the  case  before  the  court,  is 
that  money  paid,  as  in  this  case,  by  the  acceptor  of  a  bill  of  exchange 
to  the  payee  of  the  same,  or  to  a  subsequent  indorsee,  in  discharge 
of  his  legal  obligation  as  such,  is  not  a  payment  by  mistake  nor  with- 
out consideration,  unless  it  be  shown  that  the  instrument  was  fraudu- 
lent in  its  inception,  or  that  the  consideration  was  illegal,  or  that 
the  facts  and  circumstances  which  impeach  the  transaction,  as  between 
the  acceptor  and  the  drawer,  were  known  to  the  payee  or  subsequent 
indorsee  at  the  time  he  became  the  holder  of  the  instrument.  Fitch  v. 
Jones,  5  El.  &  Bl.  238;  Arbouin  v.  Anderson,  1  Ad.  &  E.  X.  S.  498; 
Smith  V.  Braine,  IG  Q.  B.  24-1;  Hall  v.  Featherstone,  3  H.  &  X.  287. 

"Such  an  instrument,  as  between  the  payee  and  the  acceptor,  imports 
a  sufficient  consideration,  and  in  a  suit  by  the  former  against  the 
latter  the  defence  of  prior  equities,  as  between  the  acceptor  and  the 
drawer,  is  not  open  unless  it  be  shown  that  the  payee,  at  the  time  he 
became  the  holder  of  the  instrument,  had  knowledge  of  those  facts 
and  circumstances. 

"Attempt  is  made  in  argument  to  show  that  the  plaintiffs  accepted 
the  bills  of  exchange  upon  the  faith  and  security  of  the  bills  of  lading 
attached  to  the  same  at  the  time  the  bills  of  exchange  were  discounted 
by  the  defendants.  Suppose  it  was  so,  which  is  not  satisfactorily 
proved,  still  it  is  not  perceived  that  the  concession,  if  made,  would  bene- 
fit the  plaintiffs,  as  the  bills  of  exchange  are  in  the  usual  form  and 
contain  no  reference  whatever  to  the  bills  of  lading,  and  it  is  not  pre- 
tended that  the  defendants  had  any  knowledge  or  intimation  that  the 
bills  of  lading  were  not  genuine,  nor  is  it  pretended  that  they  made 
ar.y  representation  upon  the  subject  to  induce  the  plaintiff's  to  con- 
tract any  such  liability.  They  received  the  bills  of  exchange  in  the 
usual  course  of  their  business  as  a  bank  of  discount  and  paid  the  full 
amount  of  the  net  proceeds  of  the  same  to  the  drawers,  and  it  is  not 
even  suggested  that  any  act  of  the  defendants,  excoj^t  the  indorsement 
of  the  bills  of  exchange  in  the  usual  course  of  their  business,  ojiorated 
to  the  prejudice  of  the  plaintiffs  or  prevented  them  from  making  an 
earlier  discovery  of  the  true  character  of  the  transaction.     On  the 

rij,'lits  against  any  indorser.  havinp  taken  the  bill  from  the  wronpdoer.  Com- 
mercial Bank  r.  First  National  Bank,  .SO  Md.  11;  Salt  Sprinfr^  Bank  r.  Syra- 
cuse Inst.  62  Barb.  101  :  T,c\y  r.  V.  S.  Bank,  1  Binney,  27;  Bank  of  St.  Albans 
r.  Farmers'  Bank.  10  Vt.  141;  Howard  v.  ;Mississippi  Bank,  28  La.  Ann.  727. 
S(v  also  Mather  v.  ilaidstone,  18  C.  B.  273."— Ms.  note. 

Src  V.  S.  Bank  c.  Bank  of  Georgia  (1825)   10  \\hcaton,  .S;^3.— Ed. 


530  AIKEN    V.    ELIZABETH    SHORT.  [BOOK   II, 

contrary,  it  distinctly  appears  that  the  drawers  of  the  bills  of  ex- 
change were  the  regular  correspondents  of  the  plaintiffs,  and  that  they 
became  the  acceptors  of  the  bills  of  exchange  at  the  request  of  the 
drawers  of  the  same,  and  upon  their  representations  that  the  flour 
mentioned  in  the  bills  of  lading  had  been  shipped  to  their  lirni  for 
sale  under  the  arrangement  before  described. 

"Beyond  doubt  the  bills  of  lading  gave  some  credit  to  the  bills  of  ex- 
change beyond  what  was  created  l»y  the  pecuniary  standing  of  the 
parties  to  the  same,  but  it  is  elear  that  they  are  not  a  part  of  those 
instruments,  nor  are  they  referred  to  either  in  the  body  of  the  bills 
or  in  the  acceptance,  and  they  cannot  be  regarded  in  any  more  favor- 
able light  for  the  plaintiffs  than  as  collateral  security  accompanying 
the  bills  of  exchange. 

"Sent  forward,  as  the  bills  of  lading  were,  with  the  bills  of  exchange, 
it  is  beyond  question  that  the  property  in  the  same  passed  to  the 
acceptors  when  they  paid  the  several  amounts  therein  specified,  as  the 
lien,  if  any,  in  favor  of  the  defendants  was  then  displaced  and  the 
plaintiffs  became  entitled  to  the  instruments  as  the  muniments  of 
title  to  the  flour  shi])ped  to  them  for  sale,  and  as  security  for  the 
money  which  they  had  advanced  under  the  arrangement  between  them 
and  the  drawers  of  the  bills  of  exchange.  Proof,  therefore,  that  the 
bills  of  lading  were  forgeries  could  not  operate  to  discharge  the  liability 
of  the  plaintiffs,  as  acceptors,  to  pay  the  amounts  to  the  payees  or 
their  indorsees,  as  the  payees  were  innocent  holders,  having  paid  value 
for  the  same  in  the  usual  course  of  business.  Leather  i'.  Simpson, 
L.  H.  11  Eq.  398." 


AIKEN,    PUBLir    DFFTrEP,    ETC.    v.    ELIZABETH    SIIOBT. 
EXECUTRIX  OF  FKWN'CTS  SliUKT. 

EXCHEQUEH,    185f). 
fl    Jfiirlsfoiir  if-   Xnrwaii.  '310.] 

AcTIOX  for  money  bad  and  received.      IMca  never  indohtod. 

At  the  trial  before  Pl.vtt,  B.,  at  the  Middle.>^ex  sittings,  in  last 
Hilary  term,  the  following  facts  were  proved:  The  defendant  was  the 
widow  and  sole  executrix  of  Francis  Short,  who  died  in  1853.  One 
Edwin  Carter  had  made  a  will,  dated  February.  18-10,  by  which  he 
gave  his  [iroperty  equally  among.^t  hi.'*  eight  brothers  and  sist(>rs,  of 
whom  (Jeorge  Carter  was  one.  This  will  was  proved  after  his  death, 
which  took  place  in  1847,  by  John  Carter  the  younger.  George  Carter 
being  largfly  indebted  to  Stuckey's  Banking  Conij)any,  by  deed  dated 
the    15th    .lamnirv.    1855,   conveyed    to    the    banking    company    his 


CHAP.    II.]  AIKEN    V.    ELIZABETH    SHORT.  531 

one-eighth  share  in  the  property  of  Edwin  Carter,  to  which  he  pro- 
fessed to  be  entitled  under  this  will,  subject  to  the  charges  upon  it. 
George  Carter  was  at  that  time  indebted  to  the  defendant,  as  execu- 
trix of  Francis  Short,  in  the  sura  of  £200,  which  was  secured  by  an 
equitable  mortgage  of  the  property  devised  to  him  by  Edwin  Carter's 
will,  and  by  the  joint  and  several  bond  of  George  Carter,  John  Carter, 
and  Charles  Carter,  dated  October,  1850.  The  equitable  charge  was 
recited  in  the  deed  of  the  loth  January,  and  at  the  time  of  the 
execution  of  that  deed  it  was  agreed,  as  between  George  Carter  and 
the  bank,  that  the  bank  should  pay  off  this  sum  of  £200  and  interest. 
In  May, .  1855,  the  bank  made  arrangements  to  sell  the  property. 
Before  the  execution  of  the  conveyance  one  Richardson,  acting  as 
attorney  for  the  defendant,  applied  to  the  bank  for  payment  of  the 
£200,  and  interest,  stating  tiuit  he  had  applied  to  George  Carter,  who 
had  referred  him  to  the  bank.  The  bank  accordingly,  through  their 
attorney,  paid  to  the  defendant  the  sum  of  £22G  16s.  6d.  The  bond 
and  instrument  of  mortgage  were  handed  over  by  the  defendant  to  the 
bank,  and  they  took  a  receipt  for  the  money  due  on  the  bond  and 
mortgage.  In  August,  1855,  John  Carter  produced  a  will  of  Edwm 
Carter,  dated  April,  1846,  which  appeared  to  be  the  true  last  will 
of  Edwin  Carter.  This  will,  the  existence  of  which  had  been  kept 
secret  by  the  Carters,  had  been  prepared  in  the  office  of  Francis  Short, 
the  defendant's  testator,  and  was  attested  by  him.  Under  this  will 
George  Carter  took  only  an  annuity  of  £100,  which  ceased  upon  his 
making  any  assignment.  The  bank  then  applied  to  the  defendant  to 
refund  the  £226  16s.  6d.  previously  paid  by  them  to  her,  and  on  her 
refusal  to  repay  the  money  brought  tlie  present  action  to  recover  it 
back.  Upon  these  facts,  the  learned  judge  directed  a  verdict  for  the 
plaintiff,  reserving  leave  to  the  defendant  to  move  to  enter  a  verdict 
for  him. 

Pollock,  C.  B.  We  are  all  of  opinion  that  the  rule  must  be  abso- 
lute. The  case,  when  examined,  is  quite  clear,  and  the  facts  lie  in  a 
narrow  compass.  The  defendant's  testator.  Short,  had  a  claim  on 
Carter, — a  bond  and  a  security  on  property  which  Carter  afterwards 
mortgaged  to  the  bank.  The  defendant,  who  was  the  executrix  of 
Short,  applied  to  Carter  for  payment.  He  referred  her  to  the  bank, 
who,  conceiving  that  the  defendant  had  a  good  equitable  charge,  paid 
the  debt,  as  they  reasonably  might  do,  to  get  rid  of  the  charge  affecting 
their  interest.  In  consequence  of  the  discovery  of  a  later  will  of 
Edwin  Carter,  it  turned  out  that  the  defendant  had  no  title.  The 
bank  had  paid  the  money  in  one  sense  without  any  consideration, 
but  the  defendant  had  a  perfect  right  to  receive  the  money  from 
Carter,  and  the  bankers  paid  for  him.  They  should  have  taken  care 
not  to  have  paid  over  the  money  to  get  a  valueless  security;  but  the 
defendant  has  nothing  to  do  with  their  mistake.  Suppose  it  was 
announced  that  there  was  to  be  a  dividend  on  the  estate  of  a  trader. 


532  IIAKRI.S    V.    LOYD.  [BOOK    II. 

and  persons  to  whom  lie  was  indebted  went  to  an  otliee  and  received 
instalments  of  the  debts  due  to  them,  could  the  party  paying  recover 
back  the  money  if  it  turned  out  that  he  was  wronj;  in  supposin^r  that 
he  had  funds  in  hand?  The  money  was,  in  fact,  ])aid  by  the  bank, 
as  the  agents  of  Carter. 

Platt,  B.  I  am  of  the  same  opinion.  The  action  for  money  had 
and  received  lies  only  for  money  which  the  defendant  ought  to  refund 
ex  crquo  ei  bono.  Was  there  any  obligation  here  to  refund?  There 
was  a  debt  due  to  Short,  secured  by  a  bond  and  a  supposed  equitable 
charge  by  way  of  collateral  security.  The  property  on  which  Short 
had  the  charge  was  conveyed  by  Carter  to  the  bank.  Short  having 
died,  the  defendant,  his  executrix,  applied  to  George  Carter  for  pay- 
ment of  the  debt  due  to  her  husband,  the  testator.  Carter  referred 
her  to  the  bank,  who  paid  the  debt,  and  the  bond  was  satisfied.  The 
money  which  the  defendant  got  from  her  (le])tor  was  actually  due  to 
her,  and  there  can  be  no  obligation  to  refund  it. 

Bk.vmwkll,  B.  ^ly  brother  Martin,  ])efore  he  left  tlu^  court,  desired 
me  to  say  that  he  was  of  the  same  opinion,  and  so  am  I.  In  order  to 
entitle  a  person  to  recover  back  money  jiaid  under  a  mistake  of  fact, 
the  mistake  must  be  as  to  a  fact  which,  if  true,  would  make  the  person 
paying  liable  to  pay  the  money;  not  where,  if  true,  it  would  merely 
make  it  desirable  that  he  should  pay  the  money.  See  Wilson  v.  Thorn- 
bury,  L.  K.  10  Ch.  239.  Here,  if  the  fact  was  true,  the  bankers  were 
at  liberty  to  pay  or  not,  as  they  pleased.  But  relying  on  the  belief 
that  the  defendant  had  a  valid  security,  they,  having  a  subsequent 
legal  mortgage,  chose  to  pay  off  the  defendant's  charge.  It  is  im- 
possii)Ie  to  say  that  this  ca.se  falls  within  the  rule.  The  mistake  of 
fact  was,  that  the  bank  thouglit  that  they  coidd  sell  the  estate  for  a 
better  price.  It  is  true  that  if  the  plaintiff  could  recover  back  this 
money  from  the  defendant,  there  would  l)e  no  dilliculty  in  the  way 
of  the  defendant  suing  Carter.  In  Pritchard  t'.  Hitchcock,  (!  M.  &  G. 
1.51,  a  creditor  was  held  to  be  at  liberty  to  sue  upon  a  guarantee  of 
bills,  though  the  bills  had  been  in  fact  |)aid,  but  the  money  after- 
wards recovered  back  i)y  the  assignees  of  the  acceptor,  as  having  been 
paid  by  way  of  fraudulent  preference.  But  that  does  not  show  that 
the  [jlaintilTs  can  maintain  this  action,  and  I  am  of  o|)inion  they 
cannot,  havinir  voluntarily  parted  with  their  money  to  purcluise  that 
which  the  defendant  had  to  .sell,  though  no  doubt  it  turned  out  to  be 
different  to,  and  of  less  value  than,  what  they  expected. 

Huh  nhsolnte. 


I.\  Ilnrrxs  v.  Loijil  ( \H'.V.))  the  plaintiff,  a  trustee  under  a  trust  deed 
for  the  creditors  of  .\.  f)aid  to  the  defen<lant,  a  sheriff.  un<ler  protest, 
the  amount  of  a  stip|u)sed  hut  really  non-existent  encumbrance  in  order 
to  release  the  goo<ls  seized  bv  Hie  sheriff,  fhe  latter  j)aying  over  the 


CHAP.    II.]  DAMBMANN    V.    SCHULTUNG.  533 

funds  so  seized  to  the  execution  creditor.  The  plaintiff  sued  to  recover 
the  money  as  having  been  paid  under  a  mistake  of  fact.  The  court  sus- 
tained a  non-suit,  Alderson,  B.,  saying:  "This  is  money  paid,  not 
under  a  mistake,  but  under  a  bargain.  True,  it  turns  out  to  be  a 
bad  bargain ;  but  that  will  not  affect  its  validity.  But  further,  the 
money  is  paid  to  the  sheriff  for  the  purpose  of  being  paid  over  to  the 
execution  creditor,  suljjeet  only  to  the  plaintiffs'  suppo.sed  right  under 
the  deed.  By  the  delivery  of  the  writ  to  the  sheriff  the  goods  are 
bound,  and  the  property  in  them  cannot  afterwards  be  transferred 
by  the  debtor,  except  subject  to  the  interest  of  the  execution  creditor. 
There  can  be  no  doubt  that  tlie  delivery  to  the  deputy  in  London  is 
a  delivery  to  the  sheriff;  the  deputy  is  appointed  for  that  very  pur- 
pose. The  plaintiffs  were  wrong,  and  the  sheriff  right,  at  the  time 
of  the  payment,  and  it  was  the  duty  of  the  sheriff  to  pay  over  the 
money  to  the  execution  creditor.  Can  it  be  argued,  that  after  such 
payment  over,  he  can  be  compelled  to  refund  it?  I  think  not.  I  am 
of  opinion,  therefore,  that  the  rule  ought  to  be  discharged."^ 


Ix  Damhmann  v.  ScliuUung  (1878)  75  N.  Y.  55,  Earl,  J.,  speak- 
ing for  the  court,  said : 

"It  is  further  claimed  that  the  plaintiff  ought  to  be  entitled  to  relief 
on  account  of  mistake.  He  testified  that  he  would  not  have  executed 
the  release  if  he  had  known  the  defendant's  financial  condition. 
But  as  already  shown,  the  defendant  was  in  no  way  responsible  for  his 
ignorance,  and  was  under  no  legal  or  equitable  obligation  to  disclose 
the  facts  as  to  his  pecuniary  circumstances.  The  plaintiff  could  have 
learned  the  facts  by  inquiry  of  tlie  defendant  or  his  vendees.  There 
was  no  mistake  as  to  any  fact  intrinsic  to  the  release.  Plaintiff  knew 
that  the  defendant  had  not  been  legally  discharged  from  his  liability, 
and  that  for  the  $5,000  he  was  to  give  him  an  absolute  release ;  and 
he  gave  him  just  such  a  release  as  he  intended  to.  There  was  no 
mistake  of  any  intrinsic  fact  essential  to  the  contract  or  involved 
therein.  The  defendant's  financial  condition  was  an  extrinsic  fact, 
which  might  have  influenced  the  plaintiff's  action  if  he  had  knovm  it. 
But  ignorance  of  or  mistake  as  to  such  a  fact  is  not  ground  for 
affirmative  equitable  relief.  The  following  illustrations  of  mistakes 
as  to  intrinsic  facts  essential  to  contracts,  against  which  courts  of 
equity  will  relieve,  are  found  in  the  books.  A.  buys  an  estate  of  B. 
to  which  the  latter  is  supposed  to  have  an  unquestionable  title.  It 
turns  out,  upon  due  investigation  of  the  facts,  that  B.  has  no  title; 
in  such  a  case,  equHy  will  relieve  the  purchaser  and  rescind  the 
contract.    Bingham  v.  Bingham.  1  Vesey,  120.     If  a  horse  should  bo 

'Cf.  Kieth  V.  Grant  (1792)  4  Morr.  Die.  2933;  Whiting  v.  City  Bank  (1879) 
77  N.  Y.  3G3.— Ed. 


534  DAMBMANX    r.    SCIIULTUNO.  [BOOK    II. 

purchased,  wlncli  is  by  both  parties  believed  to  be  alive,  but  is,  at  the 
time,  in  fact  dead,  the  purchaser  would,  upon  the  same  ground,  be 
released  by  rescinding  the  contract.  Allen  v.  Hammond,  11  Peters, 
71.  If  a  person  should  execute  a  release  to  another  party  upon  the 
supposition,  founded  on  a  mistake,  that  a  certain  debt  or  annuity  had 
been  discharged,  although  both  parties  were  innocent,  the  release 
would  be  set  aside.  Hore  v.  Becher,  12  Simons,  465.  If  one  should 
execute  a  release  so  broad  in  its  terms  as  to  release  his  rights  in 
property,  of  which  he  was  wholly  ignorant,  and  which  was  not  in  con- 
templation of  the  parties  at  the  time  the  bargain  for  the  release  was 
made,  a  court  of  equity  might  either  cancel  the  release  or  restrain  its 
application  as  intended.  Cholmondeley  v.  Clinton,  2  ^leriv.  352; 
Dungers  v.  Angove,  2  Ves.  304.  On  the  other  hand,  if  the  vendee  is  in 
possession  of  facts  which  will  materially  enhance  the  price  of  the 
commodity  and  of  which  he  knows  the  vendor  to  be  ignorant,  he  is 
not  bound  to  communicate  those  facts  to  the  vendor,  and  the  contract 
will  be  held  valid.  Laidlaw  i'.  Organ,  2  Wheat.  178.  In  such  a  case 
the  facts  unknown  to  the  vendor  are  extrinsic  to  the  contract  and  are 
not  of  its  substance;  and  hence  there  is  no  ground  for  the  inter- 
ference of  a  court  of  equity. 

"It  is  clear  from  these,  and  other  illustrations  wliich  might  be  given, 
that  a  court  of  equity  will  not  give  relief  in  all  cases  of  mistake.  There 
are  many  extrinsic  facts  surrounding  every  business  transaction  which 
have  an  important  l)earing  and  influence  upon  its  results.  Some  of 
them  are  generally  unknown  to  one  or  both  of  the  parties,  and  if 
known  might  have  prevented  the  transaction.  In  such  cases,  if  a 
court  of  equity  could  intervene  and  grant  relief,  bccau.se  a  party  was 
mistaken  as  to  such  a  fact  which  would  have  prevented  him  from 
entering  into  the  transaction  if  he  had  known  the  truth,  there  would 
be  such  uncertainty  and  instability  in  contracts  as  to  lead  to  much 
emi)arrassment.  As  to  all  such  facts,  a  party  must  rely  upon  his 
own  circuinsfx'etion,  examination  and  intpiiry;  and  if  not  imposed 
uf)on  or  (h'frauded,  lie  must  be  lield  to  his  contracts.  In  such  cases, 
equity  will  not  stretch  out  its  arm  to  ])rotoct  tho.se  who  suffer  for  the 
want  of  vigihmce. 

"Judge  Stouy  lays  it  down  as  a  general  rule  Mliat  mistake  or 
ignorance  of  facts  in  parties  is  a  proper  subject  of  relief  only  when  it 
constitutes  a  material  ingredient  in  the  contract  of  the  parties,  and 
disappoint.'<  their  intention  l)y  a  mutual  error;  or  whore  it  is  incon- 
sistent with  good  faith,  and  proceeds  from  a  violation  of  the  obliga- 
tions which  are  imposed  by  law  u|)on  th(>  conscience  of  either  party. 
But  where  each  party  is  equally  innocent,  and  there  is  no  conceal- 
ment of  facts  which  the  other  party  has  a  right  to  know,  and  no 
surpri.so  or  imposition  exists,  the  mistake  or  ignorance,  whether  mutual 
or  unilateral,  is  treated  as  laying  no  founilalioii  for  e(]uitable  inter- 
ference.'    Story's  K(|.  Jur.,  §   151." 


CHAP,    II. J  STEl'liEXS    V.    BOAUD   OF   EDUCATION.  535 

STEPHENS  V.  BOARD  OF  EDUCATION. 

Court  of  Appeals  of  Xew  York,  1879. 
[79  New  York,  183.] 

Appeal  from  judijnient  of  the  General  Term  of  Supreme  Court,  in 
the  second  jutlicial  de})artnient,  in  favor  of  plaintiff,  entered  upon 
an  order  overruling  exceptions  and  directing  judgment  upon  a  verdict. 

This  action  was  brought  to  recover  moneys  alleged  to  have  been 
received  by  defendant  belonging  to  plaintiff. 

The  facts  appear  sufficiently  in  the  opinion.^ 

Andrews,  J.  There  is  no  dispute  as  to  the  material  facts.  On 
and  prior  to  the  18th  of  December,  1871,  one  Gill  was  a  member  of 
the  board  of  education  of  the  city  of  Brooklyn,  and,  as  attorney  for 
said  board,  received  $3,600.84,  the  money  of  the  board,  which  he 
wrongfully  converted  and  appropriated  to  his  own  use.  Soon  after 
the  date  mentioned,  he  procured  from  the  plaintiff  on  a  mortgage 
forged  by  him  on  the  property  of  a  third  person  $4,129.34  in  a  check 
of  the  plaintiff  which  on  the  21st  of  December,  1871,  he  deposited  in 
a  bank,  to  his  credit,  and  on  the  same  day  drew  his  own  check  on  the 
bank  in  which  the  deposit  was  made,  to  the  order  of  the  board  of 
education  for  the  amount  of  the  money  fraudulently  appropriated 
by  him  and  delivered  the  same  to  the  board,  and  the  board  thereupon 
credited  the  check  to  Gill  in  discharge  of  his  debt.  The  check  was 
paid  in  due  course,  and  the  money  received  thereon  was  used  by  the 
board  in  its  business.  The  plaintiff,  about  two  months  thereafter, 
ascertained  that  the  mortgage  received  from  Gill  was  a  forgery,  and 
then  demanded  from  the  defendant  the  money  received  from  Gill. 
The  defendant  had  no  notice,  when  it  received  the  check  from  Gill,  of 
the  fraud  by  which  he  obtained  the  money  of  the  plaintiff,  nor  had 
it  any  information  as  to  the  source  from  which  the  money  to  his 
credit  in  the  bank  was  derived.  The  first  information  which  the 
defendant  had  of  the  facts  in  respect  thereto  was  at  the  time  of  the 
demand  made  by  the  plaintiff,  before  referred  to. 

The  question  is  presented  whether,  under  these  circumstances,  the 
plaintiff  can  maintain  an  action  to  recover  the  money  received  by 
the  defendant  from  Gill  and  ap])lied  in  payment  of  the  debt  owing 
by  him  to  the  defendant.  We  are  of  opinion  that  the  action  will  not  lie. 
The  money  having  been  obtained  by  (lill  from  the  plaintiff  by  fraud 
and  felony  tbe  former  acquired  ii<i  title  thereto  and  the  plaintiff 
could  recover  it  from  Gill  if  found  in  his  possession,  or  he  could  fol- 
low it  into  the  hands  of  any  person  who  received  it  from  Gill  witliout 
consideration  or   with   notice   of   the   fraud   by   which   he   obtained 

*The  arguments  of  counsel  are  omitted. — Ed. 


o3G  STEPHENS  V.    BOARD  OF  EDUCATION,        [BOOK  II. 

it.  The  monoy  when  deposited  by  Gill  in  the  bank,  was  still  the 
money  of  the  plaintilF.  The  bank  was  a  mere  depository  and  while  it 
so  remained,  tiie  plaintiti'  eould  have  compelled  the  bank  to  restore 
the  money  to  him  as  the  rightful  owner.  (Tradesmans'  Bk.  r.  Merritt, 
1  Paige,  302 ;  Mechanics'  Bk.  r.  Levy,  3  id.  GOG ;  Pennell  v.  Deffell, 
4  Di'  Gex,  M.  &  G.  372.)  But  the  bank,  having  paid  it  out  on  the 
check  of  Gill  without  notice  of  any  defect  in  his  title,  was  there- 
after protected  against  any  claim  of  the  plaintiff  therefor.  The 
plaintiff,  however,  passing  by  the  bank  to  whose  possession  the  money 
first  came  from  Gill,  claims  to  recover  of  the  defendant  on  the  ground 
that  tiie  defendant,  having  received  it  from  Gill  in  payment  of  an 
antecedent  debt,  cannot  be  permitted  to  retain  it  as  against  the 
plaintiff.  Xo  authority  has  been  cited  which  sustains  this  position. 
The  rule  has  been  settled  by  a  long  line  of  cases,  that  money  obtained 
by  fraud  or  felony  cannot  be  followed  by  the  true  owner  into  the 
hands  of  one  who  has  received  it  bo7ia  fide  and  for  a  valuable  con- 
sideration in  due  course  of  business.  This,  said  Lord  Holt  in  1  Salk. 
12G,  is  "by  reason  of  the  course  of  trade  which  creates  a  property 
in  the  assignee  or  bearer" — and  in  Miller  v.  Race,  4  Burr.  452,  Lord 
Mansfield  said :  "The  true  reason  is  upon  account  of  the  currency  of 
it;  it  cannot  be  recovered  after  it  has  passed  into  currency."  No  sus- 
picion is  cast  upon  the  bona  fides  of  the  defendant.  It  received  the 
money  in  the  ordinary  course  of  business,  and  for  a  good  and  valid 
consideration.  The  defendant  had  no  connection  with  the  fraud 
of  (iill.  He  did  not  act  or  assume  to  act  as  the  defendant's  agent  in 
the  transaction  with  the  plaintifF.  The  money  was  not  obtained 
through  or  by  means  of  his  relation  to  the  defendant.  The  position 
and  rights  of  the  parties  are  precisely  the  same  as  if  Gill  had  not 
been  a  member  of  the  board  when  the  j)ayment  was  made,  or  as  if  the 
debt  which  he  paid  had  not  originated  in  any  violation  of  trust.  It 
is  said  that  the  case  is  to  be  goverened  by  the  doctrine  established  in 
this  State  that  an  antecedent  debt  is  not  such  a  consideration  as  will 
cut  off  the  equities  of  third  parties  in  respect  of  negotiable  securities 
obtained  by  fraud.  But  no  case  has  been  referred  to  where  this 
doctrine  has  been  applied  to  money  received  in  good  faith  in  pay- 
ment of  a  debt.  It  is  absolutely  necessary  for  practical  business  trans- 
actions that  tlie  payee  of  money  in  due  course  of  business  shall  not 
Ix'  put  upon  in(|uiry  at  his  |)eri]  as  to  the  title  of  the  payor.  Money 
has  no  ear-mark.  The  purchaser  of  a  chattel  or  a  chose  in  action 
may,  by  inrpiiry,  in  most  cases,  ascertain  the  right  of  the  person  from 
whom  he  takes  the  title.  But  it  is  generally  impracticable  to  trace 
the  source  from  whicli  the  possessor  of  money  has  derived  it.  It 
would  introduce  great  confusion  into  commercial  dealings  if  the 
creditor  wIk)  receives  money  in  payment  of  a  debt  is  subject  to  the 
risk  of  aeenuiitiiig  therefor  to  a  third  jxTson  who  iTiay  be  able  to 
show  that  the  debtor  obtained  it  from  him  bv  felony  or  fraud.     The 


CHAP.    II.]  LEMANS   V.    WILEY,  537 

law  wisely,  from. considerations  of  public  policy  and  convenience,  and 
to  give  security  and  certainty  to  business  transactions,  adjudges  that 
the  possession  of  money  vests  the  title  in  the  holder  as  to  third 
persons  dealing  with  hira  and  receiving  it  in  due  course  of  business 
and  in  good  faith  upon  a  valid  consideration.  If  the  consideration  is 
good  as  between  the  parties,  it  is  good  as  to  all  the  world.  "Money," 
said  Lord  Mansfield,  in  Miller  v.  Race,  before  cited:  "shall  never 
be  followed  into  the  hands  of  a  person  who  bona  fide  took  it  in  the 
course  of  currency  and  in  the  way  of  his  business."  The  question  in- 
volved in  this  case  was  considered  by  Johnson,  J.,  in  Justh  v.  Bank 
of  Commonwealth,  56  N.  Y.  478,  and  he  says :  "In  the  absence  of 
trust  or  agency  I  take  the  rule  to  be  that  it  is  only  to  the  extent  of 
the  interest  remaining  in  the  party  committing  the  fraud  that  money 
can  be  followed  as  against  an  innocent  party  having  a  lawful  title 
founded  upon  consideration ;  and  that  if  it  has  been  paid  in  the  ordi- 
nary course  of  business,  either  upon  a  new  consideration  or  for  an 
existing  debt,  the  right  of  the  party  to  follow  the  money  is  gone." 
The  case  perhaps  did  not  call  for  a  decision  upon  the  point  whether 
an  existing  debt  was  a  sufficient  consideration  to  uphold  a  title  to 
money  fraudulently  obtained  by  a  debtor,  and  by  him  paid  to  his 
creditor,  as  against  the  defrauded  party;  but  we  think  it  correctly 
declares  the  rule  of  law  upon  the  subject.  The  case  of  Caussidiere  i*. 
Beers,  2  Iveyes,  198,  is  entirely  consistent  with  the  rule  here  declared. 
The  defendant  in  that  case  had  no  right  to  the  money  either  against 
the  agent  from  whom  lie  obtained  it  or  the  principal  to  whom  it 
belonged.    The  judgment  should  be  reversed  and  a  new  trial  ordered. 

All  concur. 

Judgment  reversed.^ 


LEMANS  V.  WILEY. 

Supreme  Court  of  Indiana,  1883. 

[92  Indiana,  436.] 

From  the  Wabash  Circuit  Court. 

ZoLLARS,  J.  The  complaint  by  appellee  against  appellant  is  for 
money  had  and  received.  Trial,  verdict,  and,  over  a  motion  for  a 
new  trial,  judgment  for  appellee  for  $211.75.  The  overruling  of  the 
motion  for  a  new  trial  is  assigned  as  error  in  this  court.  One  of  the 
causes  urged  for  a  new  trial  is  that  the  verdict  is  not  sustained  by 
sufficient  evidence. 

'Accord:  Walker  r.  Conant  (18SS)  fi.i  Mich.  104:  Clark  r.  Wyatt  (ISO-S) 
139  N.  Y.  452;  Southwick  r.  First  National  Bank  of  Memphis  (  ISSl)  84  N.  Y. 
420.— Ed. 


538  LEMANS    V.    WII.KY.  [BOOK    II. 

The  following  are  some  of  the  cases  in  which  an  action  for  money 
had  and  received  will  lie: 

"If  one  man  has  ohtained  money  from  another  through  the  medium 
of  ojjpression,  imposition,  extortion  or  deceit,  such  money  is,  in  con- 
templation of  law,  money  received  for  the  use  of  the  injured  party. 
It  is  not  the  money  of  the  wrongdoer,  he  has  no  right  to  retain  it; 
and  the  law,  therefore,  im])lies  a  promise  from  him  to  return  it 
to  the  lawful  owner,  whose  title  to  it  cannot  he  destroyed  or  annulled 
hy  the  fraudulent  and  unjust  dispossession.  .  .  .  So,  where  money 
has  been  received  hy  mistake  of  facts,  or  without  consideration,  or 
upon  a  consideration  that  has  failed,  it  may  he  recovered  hack.  So, 
money  received  under  a  special  contract  that  has  heen  rescinded,  may 
he  recovered  in  an  action  for  money  had  and  received."  McQueen  v. 
State  Bank,  t?  Ind.  413.  See  also  Muir  r.  l?and,  2  Ind.  291 ;  Hatten  v. 
Hohinson,  4  Blackf.  479;  Ferguson  v.  Dunn,  '28  Ind.  58;  Hunt  v. 
Milligan,  57  Ind.  141. 

"An  action  of  assumpsit  for  money  had  and  received  is  an  equitable 
remedy  that  lies  in  favor  of  one  person  against  another,  when  that 
other  person  has  received  money  either  from  the  plaintiff  himself  or 
third  persons,  under  such  circumstances,  that  in  equity  and  good 
conscience  he  ought  not  to  retain  the  same,  and  which,  c.r  cpquo  et 
bono,  belongs  to  the  plaintiff."  4  Wait  Actions  and  Defenses,  p.  469. 
Other  cases  might  he  instanced,  hut  these  are  sufficient  for  present 
purposes. 

Does  the  evidence  in  this  case  make  a  case  against  appellant  for 
money  had  and  received? 

The  undisjmted  facts  in  the  case  are  as  follows,  viz.:  Jackson  Wiley, 
the  husl)and  of  appellee,  died  in  March,  1S77,  the  owner  of  a  tract  of 
land,  which  descended  to  his  children  and  his  widow,  appellee.  This 
land  was  purchased  from  appellant  hy  said  Jackson  Wiley,  and  at 
the  time  of  his  death  $400  and  over  of  the  purchase-money  was 
un[»aid.  For  this  appellant  held  two  notes  executed  hy  said  Wiley 
on  the  28th  day  of  Augu.st,  1875,  one  for  $100  and  one  for  $300,  the 
latter  l)eing  secured  by  mortgage  upon  the  hind,  in  September,  1877, 
appellant  being  in  need  of  money,  called  upon  appellee  with  th<'  notes 
an<i  said  to  her  that  he  wanted  the  money  on  the  notes  held  hy  him 
(which  were  then  overdue),  and  tliat  if  he  could  not  get  some  of  the 
money  he  would  have  to  foreclose  the  mortgage.  .\t  the  time  of  this 
call  appellant  was  indebted  to  one  I'hij^lish  uj>on  a  proniis.>Jory  note  in 
thi-  sum  of  $10:{.  .\[ipellec  had  sold  personal  property  to  Fnglish, 
and  in  })art  payment  therefor  had  beconu'  the  owner  of  his  note  on 
app<'llaiit.  English  owed  her  a  balance  over  and  above  the  note. 
.\p[)ellee  put  this  not(!  into  the  |)ossession  of  appellant,  and  |)aid  him 
$1'..'  in  cash.  r[)on  receiving  this  note  and  the  $12  in  cash,  the  follow- 
ing endorsement  was  made  upon  tin*  $100  note  held  by  ai)pellaiit,  viz.: 
"Wabash,  September  7th,   1877.     Heceived  of  Charlotte  Wiley  one 


CHAP.    II.]  LEMAXS    V.    WILEY.  539 

hundred  and  fifteen  dollars  in  full  of  this  note  and  interest."  This 
credit  consisted  of  the  English  note  so  received  by  appellant,  and  the 
$12  in  cash;  and  they  together  equalled  the  principal  and  interest  of 
the  note  upon  which  the  credit  was  so  made. 

After  this  endorsement  was  so  made,  the  note  containing  it  was  sur- 
rendered to  appellee,  and  she  has  held  it  ever  since,  and  made  no  offer 
to  return  it  to  appellant.  On  the  same  day  this  note  was  so  sur- 
rendered, a  son  of  aj)pellee  paid  to  appellant  $46.70,  which  was  credited 
upon  the  $300  note  held  by  appellant,  as  follows:  "$4«.70.  Wabash, 
September  7th,  1877.  Received  of  James  Wiley  forty-six  and  70/100 
dollars."  On  the  next  day  appellant  received  of  appellee,  or  of  the 
money  due  her  from  English,  $78,  and  the  same  was  endorsed  upon 
the  $300  note,  as  follows:  "$78.  September  8th,  1877.  Received  by 
the  hands  of  C.  Wiley  seventy-eight  dollars,  to  apply  on  the  within 
note." 

Appellee  wanted  the  endorsements  made  on  the  notes,  so  as  to  show 
that  she  had  paid  tlic  money.  After  the  endorsements  were  made, 
they  wore  read  over  to  her.  At  that  time  appellee  was  living  upon  the 
land,  and  there  was  some  talk  al)out  paying  off  the  mortgage. 

William  Riley,  a  son  of  appellee,  told  her  that  if  the  land  should 
be  sold  she  would  got  her  money  back.  In  the  fall  of  1878,  the  residue 
of  the  $300  note  not  having  been  paid,  appellant  foreclosed  his  mort- 
gage for  the  balance  due  upon  that  note,  giving  credit  for  the  amount 
endorsed  upon  it.  To  this  foreclosure  proceeding  appellee  was  a 
party. 

As  we  have  said,  the  above  are  the  undisputed  facts  in  the  case; 
they  are  gathered,  in  the  main,  from  the  testimony  of  appellee. 

Appellant  testified  that  all  of  the  money  received  by  him,  including 
the  English  note,  was  received  as  payments  upon  the  notes  held  by 
him,  and  that,  in  pursuance  of  such  payment,  ho  surrendered  one  of 
said  notes  to  appellee.  In  testifying  in  the  case,  appellee's  sons,  as 
well  as  herself,  almost  uniformly  speak  of  the  payment  to  appellant. 
Upon  the  whole  evidence  in  the  case,  there  can  scarcely  be  a  doubt 
that  the  note  and  money  received  from  appellee  by  appellant  were 
^aid  and  received  in  full  payment  of  one,  and  in  part  payment  of  the 
other,  of  the  notes  held  by  appellant. 

It  is  contended,  however,  that  the  testimony  of  appellee  tends  to 
sustain  the  verdict  and  make  good  the  averments  of  the  complaint, 
and  that,  therefore,  the  judgment  cannot  be  reversed  upon  the  weight 
of  the  evidence.  The  statements  of  appellee,  other  than  as  contained 
in  the  above  stated  facts,  are  as  follows: 

"I  let  him  liave  the  money.  At  the  time  I  let  defendant  have  the 
money  he  held  two  notes  that  were  due.  given  by  my  deceased  husl^and  ; 
and  when  he  came  he  said  he  wanted  money  on  them,  and  if  he  could 
not  get  some  he  would  have  to  foreclose  the  mortgage  on  the  land; 
he  came  with  the  notes,  and  I  traded  notes;  nothing  was  said,  par- 


540  LEMANS    V.    WILLY.  [liOOK    11. 

ticular,  about  paying  out  the  farm;  1  suppose  lie  wanted  money,  and 
1  paid  it  lo  him;  after  the  endorsements  were  made  he  read  them 
over  to  me,  and  said  tliat  it  was  according  to  hiw,  and  that  I  would 
get  tile  money  back  when  it  was  settled  up ;  if  we  did  not  pay  out  the 
land,  I  was  to  get  my  money  back,  though  he  did  not  just  say  that; 
he  did  not  say  that  he  would  ])ay  it  back,  but  that  I  should  not  lose 
anytliing  by  it;  William  Wiley  (a  son)  said  if  the  land  was  sold  I 
would  get  my  money  back ;  I  paid  $115  and  $78;  I  got  the  $100  note 
of  defendant,  and  have  had  it  ever  since." 

It  is  true,  that  in  another  ])lace  .she  says  that  .^ho  did  not  pay 
the  money  upon  the  note  and  mortgage,  but  her  testimony  as  a  whole 
shows  that  she  did  pay  it  in  exchange  for  the  $100  note,  and  as  part 
payment  of  the  other  note  held  by  appellant.  The  rule  that  this  court 
will  not  reverse  a  judgment  when  the  evidence  tends  to  sustain  the 
verdict  or  finding  does  not  go  so  far  as  to  authorize  an  allirmance 
upon  an  isolated  statement  of  a  witness  wliich  is  in  conflict  with 
other  statements  of  the  same  witness.  Taking  the  whole  of  her  testi- 
mony together,  there  is  nothing  showing,  or  tending  to  show,  that 
appellant  obtained  the  money  and  note  from  her  "through  the  medium 
of  oppression,  imposition,  extortion  or  deceit,"  nor  that  it  was  paid 
over  and  the  notes  exchanged  through  mistake  of  facts;  nor  is  there 
anything  to  show  a  want  or  failure  of  consideration,  nor  that  there  was 
a  special  contract  whieh  had  been  rescintlcd. 

There  was  no  contract  or  promise  on  the  part  of  appellant  to  receive 
the  money  or  note  as  the  money  and  note  of  appellee,  or  to  in  any  way 
return  the  one  or  its  amount,  or  repay  the  other.  The  consideration 
was  ample.  Aj)pellee  was  not  personally  liable  upon  tln'  notes  held 
by  appellant,  but  she  was  the  owner  of  the  undivided  one-third  of 
the  land  held  for  the  purchase-money  and  covered  by  the  mortgage, 
and  was  interested  in  the  extinguishment  of  those  liens,  and,  liesides, 
appelliint  ."surrendered  a  note  that  might  have  been  enforced  against 
the  land,  or  against  the  ])ersonal  estate  of  ai)|H'llee's  husband,  if  there 
was  any. 

This  note  is  not  shown  to  have  been  ji  worthless  thing,  and  we 
know  of  no  rule  of  law  or  efpiity  which  will  sanction  her  holding  it, 
and  recovering  of  ap[iellant  what  she  paid  for  it.  It  is  not  a  sutlii'ient 
answer  to  say  that  she  was  not  legally  liable  upon  the  notes  held  by 
apf)ellant,  nor  for  the  purchase-money  for  the  land.  She  had  tlie 
iindoiii)ted  right  to  make  the  payments,  and  had  the  balance  of  the  debt 
been  paid,  and  the  lan<l  saved,  she  doubtless  woubl  have  been  entitled 
to  contril)ution  from  the  heirs,  as  was  told  her  by  api)ellant  and 
her  Hon.  Tlie  monev  was  voluntarilv  paid,  and  money  so  paid  cannot 
be  recovered  back.  Lafayette,  etc.,  H.  U.  Co.  v.  PatfL'^on.  41  Ind.  :n2; 
Worley  r.  Moore.  77  Ind.  5(17;  Thompson  v.  Doty.  72  Ind.  '.VMk  Had 
the  balance  of  the  purchase- money  been  paid  and  the  land  saved,  the 
payments  by  appellee  might  have  been  a  wise  thing.     As  it  turned  out. 


CHAP.    II.]  LADY    CAVENDISH    V.    MIDDLETOX.  541 

her  payments  proved  to  be  a  misfortune  to  her;  hut  the  courts  cannot 
lepair  the  many  misfortunes  which  follow  accidents,  ill  luck,  ill  health 
and  bad  judgment.  •  We  are  of  the  opinion  that  the  evidence  does  not 
make,  nor  tend  to  make,  a  case  against  appellant  for  money  iiad 
and  received,  and  that  for  this  reason  the  judgment  must  be  reversed. 
Having  reached  this  conclusion,  it  will  not  be  necessary  to  indicate 
any  opinion  upon  other  and  minor  questions  discussed  by  counsel. 

Judgment  reversed,  with  costs. 

HowK,  C.  J.,  and  Elliott,  J.,  dissent. 

Filed  Jan.  4,  1884. 


3.   CONSIDERATIONS  AFFECTING  A  RECOVERY  FOR  A  MISTAKE  OF  FACT. 

(a)  The  Defendant  must  have  Money  or  its  Equivalent  which  ex  cequo 
et  hono  he  may  not  retain. 

LADY  CAVENDISH  v.  MIDDLETOX. 

Trinity.    Kings  Bench,  1G29. 
[3  CroWs  Charles.  141.] 

Action  upon  the  case.  Whereas  the  said  lady,  by  Ralph  Buck,  her 
servant,  having  bought  of  the  defendant  twelve  beasts  for  fourscore 
pounds,  paying  for  them  twenty  pounds  in  hand,  and  was  to  pay  si.xty 
pounds  residue  at  the  end  of  the  month,  which  twenty  pounds  the 
said  Ralph  Buclc  immediately  paid,  and  the  sixty  pounds  residue  he 
paid  for  the  plaintiff  to  the  defendant  at  the  end  of  the  month,  and 
after  died ;  that  the  defendant,  after  the  said  BucVs  death,  demanded 
of  the  plaintiff  again  the  said  sixty  pounds,  afhrming  it  was  not  paid 
i\nto  him:  wliereupon  the  plaintiff,  /idem  adhibens  to  his  assertion, 
paid  unto  him  the  said  sixty  pounds,  ubi  reverd  he  had  received  it 
before :  and  upon  this  deceit  the  action  was  brought. 

Serjeant  Chew  moved  in  arrest  of  judgment  (after  verdict  upon 
not  guilty  pleaded,  and  found  for  the  plaintiff),  that  this  action  lies 
not,  but  she  ought  to  have  brought  an  action  of  account,  as  for  money 
unduly  received. 

But  ALL  the  Court  conceived,  that  the  action  well  lies,  although 
the  plaintiff  might  have  brought  an  action  of  account.^  Whereupon 
it  was  adjudged  for  the  plaint  ill". 

*For  the  various  steps  l\v  wliicli  ludrbitatus  a.fftinupnit  wcm  upon  and  over- 
came account  and  debt,  see  ^Ir.  .\nics  in  2  Harv.  L.  R.  G7. — Ed. 


542  DALE    V.    SOLLET.  [BOOK  II. 

DALE  V.  SOLLET. 

King's  Bench,  1707. 

[4  Burrow,  2133.] 

This  was  an  action  for  money  liad  and  rocoived  to  the  plaintiff's 
use:  11011  assumpsit  was  pleaded ;  and  issue  joined. 

Case — The  defendant,  a  ship-broker,  was  the  phiintilT's  agent  in 
suing  for  and  recovering  a  sum  of  money  for  damages  done  to  the 
phiintifT's  ship;  and  did  recover  and  receive  £2000  for  the  plaintiff's 
use;  and  paid  him  all  hut  £40,  which  he  retained  for  his  labour  and 
service  therein  ;  which  the  witness  (Mr.  Fuller)  swore  lie  thought  to  be 
a  reasonable  allowance.  And  the  jury  were  of  opinion  "that  the 
defendant  ought  to  retain  £40  as  a  reasonable  allowance."  Conse- 
quently, the  plaintiff  was  not  entitled  to  recover. 

The  plaintiff  objected,  at  the  trial,  "That  the  defendant  couU  not 
give  evidence  in  this  manner,  of  his  labour  and  service;  but  ought 
to  have  PLEADED  it  by  way  of  sett-ofp%  or  at  least  to  have  given 
notice  of  it  as  a  set-ojf." 

.\  verdict  was  found  for  the  plaintiff;  subject  to  the  opinion  of 
this  Court:  and  if  the  Court  should  be  of  opinion  against  him,  then 
judgment  to  be  entered  as  upon  a   nonsuit. 

Accordingly,  on  Tuesdai/  last  (the  10th  instant),  ^Ir.  Dunning 
moved  on  behalf  of  the  defendant,  "that  judguient  might  be  entered 
against  the  plaintiff,  as  upon  a  non-suit:"  and  had  a 

Rtle  to  shew  cause. 

Sir  Fletcher  Norton,  on  behalf  of  the  plaintiff,  now  .sihewed  cause; 
and  insisted  that  the  defendant  ought  either  to  have  pleaded  it,  or 
given  notirr  of  a  sett-ofl":  but  that  he  could  not  take  advantage  of  it  in 
this  manner,  without  either  i)lea  or  notice. 

Lord  Mansfield  bad  no  doubt  of  the  defendant's  lieing  at  liberty 
to  give  this  evidence. 

Tliis  is  an  action  for  mon<'y  had  and  received  to  the  plaint ilT's  use. 
The  plaintiff  can  recover  no  more  than  he  is  in  conscience  (V.  ante, 
Mo.scs  r.  .Macferlan,  p.  1010,  1011,  1012)  and  e(|uity  entitled  to: 
which  can  l»e  no  more  than  what  remains  nflrr  dnlucting  all  just 
allowaucis  which  the  defendant  has  a  right  to  retain  out  of  the  very 
sum  dvmanded.  This  is  not  in  Ihe  nature  of  a  mAs'.v-dcmand  or 
mulutil  debt:  it  is  a  ciiaikji;.  wbicb  makes  tin-  sum  of  money  received 
for  tbc  plaintiff's  wr^v  sr)  much  h'ss. 

The  TWO  otJirr  .IincKs  concuricd. 
I',r  Ci  i:'. 
Judgment  for  llu'  defendant,  as  on  a  nonsuit. 


CHAP.  II.]  FARMER  V.    ARUNDEL.  543 

FARMER  V.  ARUNDEL. 

Common  Pleas,  1772. 
[2  William  Blachstone,  824.] 

Assumpsit  for  money  had  and  received  to  the  plaintiff's  use,  and 
for  money  lent  and  advanced,  and  for  money  laid  out  and  expended 
by  the  plaintiff  for  the  defendant.  On  non  assumpsit  pleaded  and 
issue  thereon,  the  case,  upon  trial  at  last  Worcester  Assizes  before 
Mr.  Justice  N'ares,  appeared  to  be, — ''That  the  plaintiff  was  overseer 
of  Grimley,  in  Co.  Worcester,  and  the  defendant  of  St.  Martin's,  in 
Worcester  city.  That,  in  1724,  Richard  Lamb  was  certified  by  the 
parish  of  Grimley  to  St.  Peter's,  in  Worcester,  or  any  other  parish 
in  the  said  city.  On  the  14th  of  March,  1771,  a  common  order  of 
removal  was  made  by  two  Justices  to  remove  Lamb  and  his  family 
from  St.  Martin's  to  Grimley.  The  defendant,  meeting  the  plaintiff 
in  the  city  of  Worcester,  produced  the  pauper  and  his  family  to  him, 
and  acquainted  him  with  the  order.  Whereupon  the  plaintiff  received 
the  paupers;  and  the  defendant  then  demanded  payment  of  a  bill 
of  £8  9s.  lOd.  for  the  money  expended  by  St.  Martin's  in  maintain- 
ing the  pauper  and  his  family  for  the  last  four  years,  which  the 
plaintiff  accordingly  paid.  That  the  pauper  still  continuing  in  St. 
Martin's,  another  order  of  two  justices  was  made  on  the  11th  of  Sep- 
tember, 1771,  for  his  removal,  but  in  neither  of  the  orders  is  any 
mention  made  of  the  certificate.  To  this  order  Grimley  appealed, 
and  the  Sessions  confirmed  the  same,  but  made  no  order  for  costs." 
And  this  action  is  now  brought  to  recover  back  this  sum  of  £8  9s.  lOd., 
which  the  plaintiff  says  he  paid  in  his  omti  wrong. 

Walker,  for  the  plaintiff',  argued  that  the  defendant,  having  no 
right  to  demand,  had  therefore  no  right  to  retain  this  money;  that 
the  pauper  was  not  certificated  to  St.  Martin's,  but  St.  Peter's;  and 
that,  under  stat.  8  &  9  W.  3,  c.  30,  the  certificate  must  be  to  some 
particular  place;  that  stat.  3,  Geo.  2,  c.  29  [s.  9],  provides  for  reim- 
bursing the  expenses  of  certificated  persons,  to  be  liquidated  by  a 
justice  of  peace.  This  certificate  is  three  years  prior  to  that  act, 
and  that  act  recites  that  the  expense  coidd  not  then  be  recovered  by 
law.  The  remedy  pointed  out  by  that  act  has  not  been  pursued,  even 
granting  the  certificate  to  extend  to  the  parish  of  St.  ^lartin's. 

Burland.  for  the  defendant,  insisted,  that  the  direction  was  sur- 
plusage; for  certificates  need  not  be  directed  at  all  (St.  Xicholas  Har- 
wich and  Wolferstan,  Str.  1163)  ;  but  when  once  delivered,  it  is  satis- 
fied, and  cannot  be  used  again.  High  and  Low  Bishopside;  T.  28  Geo. 
2,  Burr.  Settlem.  Cases,' 381.  That  stat.  3  Geo.  2  extends  to  all 
removals  subsequent  to  that  act  under  certificates,  whenever  given,  and 
•  that  the  justice  is  only  to  liquidate  in  case  of  a  dispute,  not  where  the 


544  MORRIS    t'.    TARIN.  [bOOK    II. 

sum  is  admitted,  as  in  the  present  case ;  that  tliere  are  many  eases 
where  a  man  has  no  right  to  demand  money,  wliich  yet  (if  volun- 
tarily paid  him)  he  may  retain, — as  debts  of  honor  or  gratitude,  and 
bounties. 

De  (iKEY,  C.  J.  When  money  is  paid  by  one  man  to  another  on  a 
mistake  either  of  fact  or  of  law,  or  by  deceit,  this  action  will  certainly 
lie.  But  the  proposition  is  not  universal,  that  whenever  a  man  pays 
money  which  he  is  not  bound  to  pay  he  may  by  this  action  recover  it 
back.'  Money  due  in  point  of  honor  or  conscience,  though  a  man  is 
not  compellable  to  pay  it,  yet  if  paid,  shall  not  be  recovered  back, — 
as  a  bona  fide  debt,  which  is  barred  by  the  statute  of  limitations.  Put 
the  form  of  the  certificate  out  of  the  case,  it  is  however  evidence,  at  all 
events,  that  the  parish  of  Grimley  have  acknowledged  the  pauper  to  be 
their  parishioner. 

And  it  is  allowed,  that  he  has  been  maintained  four  years  by  the 
pari.'sh  of  St.  Martin's.  Admitting,  therefore,  that  this  money  could 
not  have  been  demanded  by  the  defendant  (which  it  is  not  now 
necessary  to  decide),  yet  I  am  of  opinion  that  it  is  an  honest  debt, 
and  that  the  plaintiiT,  having  once  ])aid  it,  shall  not,  by  this  action, 
which  is  considered  as  an  e(|uital)le  action,  recover  it  back  again. 

GouLU,  Blackstoxe,  Nares,  Js.,  of  the  same  opinion. 

Judtrment  for  the  defendant. 


MOIMMS  r.  'r.MMNT. 

CoMMo.v  I'l.KAs  or  I*iiii.\i)i;i.i'iiiA  CorxTY,  1785. 

fl  I  hi  I  his.  1  ir.] 

A  Cahe  was  made  in  this  cause  for  the  opinion  nf  tlu^  Court, 
stating,  that  the  Defendant  i)Ought  a  bill  of  exchange  drawn  by 
lirnjawin  Harrison  t('  Co.  upon  a  house  in  France,  which  was  pre- 
sented to  the  drawee  in  Fehruarj/  1784,  and  protested  for  non  accept- 
ance. Rcforc  it  was  pn^sented,  however,  the  drawee  had  become 
insolvent,  and  an  arret  was  issued  by  the  French  government,  pro- 
hibiting the  institution  of  suits  against  him  for  a  cerlain  time.  When 
the  bill  became  due  (the  arret  still  continuing  in  force)  it  was  again 
presented,  nnd,  on  the  .'ith  of  .Jnne  1781,  protested  for  nnn  pat/nient. 
Without  any  knowledge  of  the  second  pr(»test,  and  withoiit  any  suit 
or  comj)ulsion  of  law,  the  I'lMintifT.  who  was  ojie  of  the  jiartners  of 

•S«T  ttio  fxrollcnt  lift!*'  rime  «>f  \V««m(  r.  Iloimtnn  (IRU)  1  IIiinin^'1r>n,  17<', 
antr,  in  note  to  Mowntt  r.  \Vri;;lit.  antr,  .IDD,  405.  And  tlio  princi|tiil  oiisc 
nhnuld  1)0  read  in  connection  witli  the  section  «)n  niistnko  of  law,  aulf,  .'MJ-lOtl. 
— Kd. 


CHAP.    II.]  MORRIS    V.    TARIN.  545 

the  company  that  drew  the  bill,  repaid  the  Defendant  the  principal, 
interest  and  charges,  with  20  per  cent,  damages:  But,  afterwards, 
conceiving  that  he  had  paid  the  20  per  cent,  damages  in  his  own 
wrong,  he  l)rought  this  action  to  recover  back  the  amount. 

The  Court  held  the  case  under  advisement  till  the  21st  of  November, 
■when  the  President  delivered  their  opinion  as  follows : 

Shippen,  President.  This  is  an  action  for  money  had  and  re- 
ceived to  the  Plaintiff's  use.  The  facts  are,  that  a  bill  of  exchange 
was  drawn  on  a  house  in  France  by  Benjamin  Harrison  &  Com- 
pany, of  which  company  the  Plaintiff  was  one,  in  favour  of  the 
Defendant,  or  some  other  person  who  indorsed  the  bill  to  the  De- 
fendant. The  bill  being  presented  to  the  drawee,  he  refused  to 
accept  it,  and  a  protest  was  made  for  non-acceptance — The  bill  with 
the  protest  was  sent  back,  and  the  Plaintiff  being  applied  to  for  pay- 
ment, voluntarily  paid  the  Defendant  both  principal  and  damages. 
This  action  is  brought  on  an  implied  assumpsit  to  recover  back 
part  of  the  money,  to  wit,  the  damages,  as  paid  by  mistake;  the  Plain- 
tiff contending,  that  to  compel  him  to  the  payment  of  damages,  there 
ought  not  only  to  have  been  a  protest  for  non-acceptance,  but  like- 
wise a  protest  for  non-payment ;  and  that  having  paid  those  damages, 
■when  by  law  he  was  not  obliged  to  pay  them,  he  ought  in  justice  to 
recover  the  money  back. 

This  is  a  liberal  kind  of  action,  and  will  lie  in  all  cases  where 
by  the  ties  of  natural  justice  and  equity  the  Defendant  ought  to 
refund  the  money  paid  to  him;  but  where  the  party  might  with 
a  good  conscience  receive  the  money,  and  there  was  no  deceit  or 
unfair  practice  in  obtaining  it.  although  it  was  money  which  the 
party  could  not  recover  by  law,  this  action  has  never  been  so  far 
extended  as  to  enable  the  party  who  paid  the  money  voluntarily, 
to  recover  it  back  again.  The  case  of  Lowrey  r.  Bourdieu  in  Doug. 
452,  and  that  of  Farmer  v.  Arundel  in  2  Black.  R.  825,  are  full  to 
this  point. 

In  the  present  case  the  Defendant  had  presented  the  bill  to  the 
drawee  for  acceptance,  and  on  refusal  got  it  protested.  Shortly 
after,  and  before  the  day  of  payment,  an  arret  from  the  King  of 
France  prohibits  the  creditors  of  the  drawee  from  suing  him ;  upon 
which  the  bill  was  immediately  sent  back,  and  Mr.  Morris,  without 
waiting  for  a  protest  for  non-payment,  voluntarily  takes  up  the  bill 
and  pays  the  damages.  A  protest  for  non-payment ,  however,  appears 
to  have  been  made  in  France  before  the  money  was  paid  by  Mr. 
Morris,  although  he  did  not  know  it.  The  Defendant  has  acted  with 
fairness,  and  lain  out  of  his  money,  and  might  with  a  good  conscience 
receive  the  legal  damages. 

The  point  of  law  principally  agitated  in  this  cause,  whether  a 
protest  for  non  acceptance  only,  is  sufficient  to  recover  the  money 
from  the  drawer,  is  not  material  to  be  determined  in  this  action. 


546  STRATOX    V.    KASTALL    AND   ANOTHER.  [BOOK    H. 

because,  as  it  is  voluntarily  paid,  and  the  Defendant  might  con- 
sistent with  justice  receive  it,  whether  that  point  of  law  is  for,  or 
against  the  Plaintiff,  we  think  he  cannot  recover  the  money  back. 

Judgment  for  the  Defendant. 


STRATOX  V.  RASTALL  AND  ANOTHER. 

King's  Bench,  1788. 

[2  Term  Reports.  366.] 

This  was  an  action  of  assumpsit  for  money  had  and  received  by 
the  defendant  (and  one  Williani  Avarne,  who  was  outlawed  at  the  suit 
of  the  plaintiff)  to  the  use  of  the  plaintiff,  and  for  money  lent  and 
paid ;  to  which  the  defendant  pleaded  the  general  issue.  At  the  trial 
at  Guildhall  at  the  Sittings  after  last  Michaelmas  Term,  before 
Duller.  J.,  a  verdict  for  £-425  was  found  for  the  plaintiff,  subject  to 
the  oj)inion  of  the  court  on  a  case  stated. 

It  appeared  that  defendant  and  Avarne  were  desirous  of  granting 
an  annuity  of  £100  for  their  joint  lives  and  the  life  of  the  survivor. 
The  plaintiff  agreed  to  and  did  actually  purchase  on  October  23,  1780, 
the  annuity  for  £575,  and  paid  the  said  sum  to  defendant  and  Avarne, 
Vho  receipted  for  the  same,  and  gave  a  bond  (with  a  warrant  of 
attorney  to  enter  up  judgment)  for  £1150  to  secure  the  payment  of 
the  annuity.  By  a  contemporaneous  indenture  tiie  defendant  sub- 
jected the  rents  and  profits  of  certain  messuages,  lands,  etc.,  to  the 
payment  of  the  annuity  in  question. 

Neither  the  bond,  warrant  of  attorney  nor  indenture,  was  enrolled 
within  the  time  prescribed  by  the  statute  respecting  the  grants  of  life 
annuities,  whereby  the  same  became  void.^ 

AsHiiUKST,  J.  I  think  the  plaintiff  may  maintain  this  action. 
For  wherever  a  man  has  received  money  upon  a  .consideration 
which  afterwards  fails,  that  person  from  whom  he  received  the 
money  has  a  right  to  recover  it  back  as  money  had  and  received  to 
his  use.  Here  the  plaintiff  has  paid  a  .sum  of  money  on  a  consider- 
ation which  has  failed,  and  the  only  <|uestion  is  from  whom  he  is  en- 
titled to  recover  it.  I  am  of  f)j)ini()n  that  he  is  entitled  to  recover 
it  either  from  the  defendant  and  Avarne,  or  from  either  of  them.  In- 
deed it  appears  from  the  whole  of  this  transaction  that  the  plaintiff 
had  no  confidence  in  Avarne,  but  relied  wholly  on  the  defendant. 
Avarnr  had  no  property;  it  was  the  defendant  who  gave  the  security. 
That  being  the  case,  and  the  consideration  having  failed,  is  the  plain- 

'Short  Htntonipnt  suttstitiitcd  for  the  nri^'innl  report. — En. 


CHAP.    II.]  STRATOX    V.    HASTALL   AND   ANOTHER.  547 

tiff  deprived  of  his  remedy  against  the  defendant  because  he  under- 
stood that  the  money  was  originally  raised  not  for  the  use  of  the 
defendant,  but  for  that  of  Avarne  only?  The  plaintiff  had  nothing 
to  do  with  any  private  agreement  between  the  defendant  and  Avarne; 
he  advanced  the  money  entirely  or  principally  on  the  credit  of  the 
defendant.  If  the  plaintiff'  had  been  asked  whether  he  would  have 
trusted  Avarne  only,  he  would  have  said  no;  the  receipt  imports  it. 
As  between  these  parties,  both  the  defendant  and  Avarne  received  the 
consideration  money;  and  the  plaintiff  shall  not  now  be  permitted 
to  aver  against  his  receipt. 

BuLLER^  J.  I  am  of  opinion  that  the  plaintiff  cannot  maintain 
this  action  against  the  defendant.  It  was  clearly  understood  at  the 
trial  that  Avarne  in  fact  received  the  whole  of  the  consideration 
money ;  and  on  this  case  it  must  be  taken  that  the  defendant  was  only 
a  surety.  I  will  first  consider  this  as  a  question  of  strict  law.  On 
Avarne's  proposing  to  raise  a  sum  of  money  by  way  of  annuity, 
offering  the  defendant  as  a  suret}',  the  plaintiff  advanced  the  money 
upon  the  security  of  both  for  the  payment  of  the  annuity.  Xow  on 
strict  principles  of  law,  if  that  contract  become  void  by  the  act  of  the 
plaintiff,  on  what  ground  can  he  recover  back  that  money;  for  the 
neglect  of  a  plaintiff  cannot  raise  a  debt  in  a  defendant.  It  formed  no 
part  of  the  contract;  and  if  he  can  recover  at  all,  it  must  be  on 
equitable  principles.  But  as  against  a  surety,  the  contract  cannot  be 
carried  beyond  the  strict  letter  of  it.  Then  can  the  plaintiff  recover 
against  this  defendant  on  equitable  principles.  Of  late  years  this 
court  has  very  properly  extended  the  action  for  money  had  and  re- 
ceived ;  it  is  founded  on  principles  of  justice,  and  I  do  not  wish  to  re- 
strain it  in  any  respect.  But  it  must  be  remembered  that  it  was  ex- 
tended on  the  principle  of  its  being  considered  like  a  bill  in  equity. 
And  therefore,  in  order  to  recover  money  in  this  form  of  action,  tiie 
party  must  shew  that  he  has  equity  and  conscience  on  his  side,  and  that 
he  could  recover  it  in  a  court  of  equity.  Then  as  to  the  equity  in  this 
case ;  it  appears  that  the  money  was  advanced  for  the  use  of  Avarne, 
and  that  he  only  was  benefited  by  it.  But  there  is  no  equity  in  saying 
that  a  person,  who  has  only  lent  his  name  by  way  of  securing  the 
payment  of  the  annuity,  shall  be  answerable  for  the  consideration 
money  of  that  annuity  for  which  he  has  not  pledged  his  security,  and 
from  which  he  has  received  no  benefit  whatever.  Could  the  plaintiff 
recover  this  money  against  this  defendant  in  a  court  of  equity?  The 
case  which  has  been  cited  by  the  defendant's  counsel  is  very  strong 
to  shew  that  he  could  not,  and  that  equity  distinguishes  between  the 
persons  who  join  in  a  receipt  and  him  who  actually  receives  the 
money ;  and  that  the  receipt  is  not  conclusive  against  him,  as  he  was 
only  a  surety  and  in  fact  received  no  part  of  the  consideration  money. 
In  conscience,  he  only  who  received  the  money  ought  to  be  obliged 
to  pay  it  back :  and  a  court  of  equity  would  enquire  in  this  case. 


548  STILVTOX    V.    UASTALL    AM)    ANOTHER.  [BOOK   II. 

whether  the  party  had  received  the  money  or  not.  Xow  if  a  court  of 
equity  would  give  tliis  phiintilT  no  relief,  we  ought  not  to  permit  him 
to  recover  in  a  court  of  law  in  an  action  not  founded  upon  equitable 
principle.  So  that  whether  this  is  considered  as  a  question  of  strict 
law.  or  upon  the  equitable  principles  which  have  prevailed  in  actions 
for  money  had  and  received,  I  think  the  plaintilT  is  not  entitled  to 
recover. 

Grose,  J.,  desired  to  have  further  time  to  consider  of  his  opinion; 
and  on  Monday,  April  21,  he  delivered  it  as  follows.  This  is  an  action 
for  money  had  and  received.  There  has  been  no  express  promise 
made  in  this  case;  the  action  therefore,  if  it  can  be  supported  at  all, 
must  be  founded  on  an  implied  one.  The  prima  facie  evidence  of  this 
is  the  receipt  which  was  signed  by  the  defendant  jointly  with  Avarne, 
whereby  they  both  acknowledged  to  have  received  the  money.  But  this 
mu.st  be  taken  with  all  its  concomitant  circumstances;  and  from  them 
it  appears  that  the  defendant,  in  consideration  that  the  plaintiff 
would  advance  £575  for  the  benefit  of  Avarne,  undertook  with  Arnrne 
to  become  surety, and  did  become  surety, for  the  payment  of  an  annuity 
of  £100;  and  accordingly  a  bond  was  entered  into  by  both  to 
that  elfect.  By  the  subsequent  neglect  of  the  plaintiff  that  bond  is 
become  of  no  use.  But  the  plaintiff  says  that,  under  these  circum- 
stances, the  law  implies  a  promise  by  the  defendant  to  repay  the 
money  advanced  as  money  received  to  the  plaintiff's  use.  But  no 
ca.se  has  been  cited  to  shew  that  under  such  circumstances  the  law 
implies  such  a  promise.  And  in  reality  the  money  is  not  received  by 
the  defendant  to  the  u.se  of  the  plaintiff,  nor  lent  to  the  defendant; 
but  advanced  to  Avarne  and  the  defendant  for  the  IxMu-fit  of  Avarne 
in  consideration  of  an  annuity  secured  by  bond  to  the  plaintiff.  Then 
it  is  neither  money  lent  to  be  repaid,  nor  received  for  the  use  of  the 
plaintiff.  So  that  in  strict  law  the  evidence  does  not  ))rov('  eitlier 
count  of  the  declaration.  How  stands  the  case  then  upon  i'(piital)le 
princijjles.  It  appears  |)laiiily  that  in  fact  the  defendant  has  had  no 
benefit  from  this  money.  Avarne  had  the  whole;  then  Avarne  should 
"be  answerable  for  tlie  whole.  It  is  true  that  the  defen(hint  consented 
to  become  surety  for  Avarne,  but  he  was  surety  for  the  ])ayment  of 
the  annuity,  and  not  for  the  repayment  of  the  consideration  money; 
and  he  entered  into  a  security  which  the  plaintiff  has  destroyed:  but 
that  raises  no  (-(Hiity  against  the  dcfcnchmt  who  has  received  no  benefit 
in  favour  of  the  plaintiff  who  is  alone  in  fault.  And  therefore  the 
action  cannot  be  8upi)orted  cither  upon  legal  or  equitable  grounds. 
The  I'fjstca  to  be  delivered  to  the  defendant. 


CIIAl'.    1L]  PLATT    V.    liUO.MAGE   AND   AXOTllEll.  549 

PLATT  V.  BROMAGE  AND  ANOTHER. 

Exchequer,  1854. 

[24  Law  Journal,  63.] 

This  was  an  action  by  the  plaintiff  as  assignee  of  the  estate  and 
effects  of  John  Jones,  an  insolvent.  The  first  count  was  in  trover,  for 
converting  the  goods  of  the  insolvent  before  his  insolvency,  and  the 
second  count  was  for  money  payable  to  the  plaintilf  as  assignee,  for 
money,  received  by  the  defendants,  to  the  use  of  John  Jones, 
before  his  insolvency.  The  defendants  pleaded  Xot  guilty,  Xot  pos- 
sessed, Leave  and  license,  Never  indebted,  and  other  pleas. 

At  the  trial  before  Williams,  J.,  at  the  Breconshirc  Spring  Assizes 
in  last  year,  the  facts  appeared  to  be  these: — In  October,  1850,  John 
Jones,  the  insolvent,  a  farmer  residing  at  Llangoed  farm,  in  the 
county  of  Brecon,  being  indebted  to  the  defendants,  Messrs.  Bromage 
&  Snead,  who  were  bankers  at  Brecon,  in  £660,  for  money  advanced 
by  them  to  him,  assigned  to  them  his  stock,  crops,  etc.,  at  Llangoed, 
by  way  of  mortgage,  for  securing  that  sum  and  interest.  Shortly 
afterwards,  Jones  took  a  smaller  farm,  called  "Tregunter,"  where  he 
continued  till  September,  1852,  when  his  difficulties  increasing  and 
the  debt  to  the  defendants  being  unpaid,  the  latter,  with  the  consent 
of  Jones,  took  possession  of  and  sold  the  stock,  crops,  etc.,  at  Tre- 
gunter, together  with  a  quantity  of  wheat,  to  which  he  was  entitled 
as  outgoing  tenant  of  Llangoed  farm.  It  appeared  probable  that  the 
insolvent  had  assented  to  the  sale  of  his  stock  and  crops  on  Tregunter 
farm,  under  the  belief  that  the  defendants  were  entitled  to  sell  it  under 
the  assignment.  Under  these  circumstances,  it  was  contended,  on  be- 
half of  the  plaintiff,  that  he  was  entitled  to  recover  in  respect  of  the 
stock,  crops,  etc.,  in  Tregunter,  on  the  ground  that  they  d'd  not  pass 
to  the  defendants  under  their  assignment.  The  learned  judge  reserved 
the  point,  and  the  defendants  had  a  verdict,  leave  being  reserved  to 
the  plaintiff  to  move  to  enter  a  verdict  for  him. 

J.  Evans  now  moved  accordingly  (Xov.  7).  and  renewed  the  ob- 
jection taken  at  the  trial. 

Per  Curiam.^  We  will  consult  the  learned  judge  who  tried  the 
cpuse. 

Cur.  adv.    vuU. 

Pollock,  C.  B.,  now  said:  This  was  a  case  in  which  a  rule  was 
moved  for  by  Mr.  Evatis.  The  facts  were  of  this  kind :  The  plaintiff, 
as  assignee  of  an  insolvent  John  Jones,  claimed  to  recover  certain 
effects  sold  to  pay  a  debt  due  to  the  defendants,  who  were  bankers  at 
Brecon.    The  defendants,  ^fessrs.  Bromage  iS:  Snead.  had  had  assigned 

'Pollock,  C.  B.,  Pauke,  B.,  Aldeuson.  B.,  and  Pl.vtt,  B. 


r»r)i(  I'LATT    r.    BHOMAGE    A.\I)    ANOTMKK.  [BOOK    II. 

to  them,  to  secure  certain  advances  made  by  them,  all  the  property  in  a 
certain  farm  called  *'Llanii<»ed  F'arm;"  the  assi<:nment  also  contained 
expressions  sufficient  to  include  future-acquired  property;  but  that 
could  not  be  done,  the  law  not  admitting  of  anything  being  assigned 
by  dcH?d,  except  that  which  actually  exists.  Then  the  defendants 
applied  to  have  the  security  rendered  available  entirely  with  the  con- 
sent of  the  insolvent;  whereupon  the  projK'rty  that  was  in  the  security 
was  sold,  and  that  not  being  sufficient,  also  a  seizure  was  made  upon 
another  farm,  called  "Tregunter,"  entirely  with  the  consent  of  the 
insolvent  and  the  defendants,  and  this  action  is  brought  to  recover 
in  respect  of  so  much  property  as  did  not  pass  by  the  deed  between 
the  parties.  The  point  was  reserved.  We  think  there  is  no  weight  in 
the  objection  made  on  behalf  of  the  plaintiff.  If  the  insolvent  assented 
to  the  act  being  done,  it  canno't  be  set  aside,  though  it  was  proved 
that  there  was  a  mistake  in  point  of  law,  or  a  mistake  in  point  of  fact: 
it  is  his  doing,  and  he  assented  to  it  when  it  was  done.  There  was 
a  difference  of  opinion  among  the  jury,  whether  or  not  he  was  under  a 
notion  that  the  proj)erty  i)ass('d  by  the  deed:  I  think  it  is  (juite  imma- 
terial whether  he  entertained  that  notion  or  not.  There  was  no  fraud. 
When  a  person  does  by  some  mi<?take  that  which  he  is  in  some  respect 
bound  to  do,  and  perfectly  competent  to  do,  that  cannot  be  treated  as 
a  fraud  or  as  a  mistake.  If  a  man  has  two  creditors,  and,  intending 
to  pay  one  he  by  mistake  pays  the  other,  he  cannot  get  the  money  back 
again.  It  appears  to  me  and  all  the  members  of  the  court,  that  there 
ought  to  be  no  rule. 

PAHKK.  B.  I  have  consulted  my  Brother  Williams  on  the  matter, 
and  he  says,  the  consent  of  the  in.solvent  to  the  sale  of  the  other  farm 
was  probably  influenced  by  the  supposition  on  his  part,  that  all  future- 
acquired  proj)erty,  as  well  as  all  existing  chattels,  passed  by  the  first 
assignment ;  and  he  left  that  question  to  the  jury,  who  said  they  could 
not  decide  whether  he  made  that  assignment  under  the  influence  of 
the  opinion  that  he  was  l)()und  by  the  former  assent.  That  is  quite 
immaterial :  he  gave  his  consent  uninfluenced  by  any  fraud,  and  under 
a  n)istake  of  law;  therefore,  he  must  !»<■  bound  by  that  mistake  of 
law.    On  the  (piestion  of  the  issue,  I  tiiink  the  verdict  was  right.' 

Jhilr    refused. 

'W'liilo  it  in  triU'  nn  HtntiMl  in  llic  principal  cnsp  tlint  future  ncqnircd 
propjTty  niny  not  he  nnHiffncfl  nt  law,  oqiiitv  porniitn  nnd  cnfon-os  niort<.mpos 
<A  nftiT  nc«|iiirf'<l  intorowtH.  Soo  on  fliis  suhjcr-t  tlii-  fiillowin;;  casoH;  Hf)lr<iy(l  r. 
.MnrMluiIl  (iHrtl)  10  H.  L.  C.  IIM  :  Tnill.y  r.  OlVicial  Hi'ccivpr  (IHHH)  L.  U.  1.1 
App.  CnH.  .VJ.'l;  Hrrtt  v.  Cnrtrr  (iHTr))  2  I^)\v.ll.  4.')H:  Piorrp  r.  Kmory  (18.'>0) 
32  N.  H.  4H4;  Mnrrill  r.  Nhvph  (  IHH.'J)  m  M...  AM;  Piatt  r.  N.  Y.  ami  Soa 
Hoarh  Uy.  Co.  (iHIlfi)  »  .\|ip.  Div.  (  N.  Y.)  H7  ;  SmitlnirHt  r.  VMinnnilH  (1802) 
14  X.  J.  Eq.  408  (hut  cdnipnro  f«)r  law  lioMinji.  I^  «ikor  v.  IVckwolI  (1870)  38 
N.  J.  L.  253).  Contra:  Moody  r.  NVripht  (1847)  13  Mot.  17  (hut  hoc  Chase  v. 
DonnT    (1881)    130   MaHw.   Sfifl).      For  tlu-  anoninlou.H   Nrw   York  doctrino,  see 


CHAP.    II. J  BUEL   V.    BOUGIiTON.  551 

BUEL  V.  BOUGHTON. 

Supreme  Court  of  Xew  York,  1846. 
[2  Denio,  91.] 

Error  to  the  Onondaga  C.  P.  Buel  sued  Boughton  for  money  had 
and  received  to  his  use;  and  the  case  was  substantially  as  follows: 
One  Charlotte  Smith  held  a  bond  against  the  plaintiff  for  $2650,  pay- 
able in  six  equal  annual  instalments,  with  annual  interest  from 
April  1,  1843.  James  H.  Fuller,  in  right  of  his  wife,  owned  and  had 
an  interest  in  the  bond  to  the  amount  of  $498.10.  On  the  first  day  of 
April,  1843,  the  plaintiff  gave  James  H.  Fuller  his  negotiable  promis- 
sory note  for  said  sum  of  $498.10,  having  more  than  two  years  to  run. 
The  plaintiff  agreed  to  make  the  note  payable  with  interest ;  but  inter- 
est was  left  out  of  the  note  by  mistake  in  drawing  it.  On  the  day  of 
the  date  of  the  note  Charlotte  Smith  indorsed  and  receipted  the 
amount  of  the  note  on  the  bond.  On  the  day  the  note  was  given, 
James  H.  Fuller  transferred  it  to  Almerin  Fuller,  who  indorsed  the 
amount  of  the  note  on  a  bond  which  he  held  against  James,  which 
bond  was  on  interest.  This  was  done  on  the  supposition  that  the  note 
was  also  on  interest.  About  twenty  days  afterwards  Almerin  Fuller 
transferred  the  note  to  the  defendant,  who  indorsed  the  amount  of 
the  note,  and  of  the  interest  which  was  supposed  to  have  then  accrued 
upon  it,  on  a  bond  which  he  held  against  Almerin  Fuller,  which  bond 
was  on  interest.  On  the  23d  of  May,  1845,  the  plaintiff  paid  the  note 
to  the  defendant,  and  by  mistake,  supposing  the  note  to  have  been 
written  with  interest,  paid  the  defendant  $71.20  for  interest  on  the 
note,  and  took  it  up.  The  plaintiff  brought  this  suit  to  recover  back 
the  sum  so  paid  by  mistake  for  interest.  The  defendant  set  up  the 
other  facts  which  have  been  mentioned  as  an  answer  to  the  action ;  and 
the  court  decided  in  his  favor.  A  verdict  and  judgment  having 
passed  for  the  defendant,  the  plaintiff  now  brings  error  on  a  bill  of 
exceptions.    ^ 

By  the  Court,  Broxson,  C.  J.  This  is  a  remarkable  case.  The 
plaintiff  first  omitted,  by  mistake,  to  make  the  note  payable  with 
interest,  as  he  should  have  done:  and  then,  by  another  mistake,  he 
corrected  the  first  error  by  paying  interest,  when  the  note  itself  im- 
posed no  such  obligation.  And  thus  by  two  blunders  the  parties  have 
come  out  right  at  last.    Or  at  least,  the  plaintiff  has  paid  no  more  than 

Kribbs  r.  Alford  (1890)  120  X.  Y.  519:  Rochester  Distilling  Co.  t\  Rasey 
(1894)  14'2  X.  Y.  570;  Kirchwcy  Cases  on  Mortpa-je,  175;  Central  Trust  Co.  v. 
\Vest  Ind.  Imp.  Co.  (1901)  100  X.  Y.  ;U4.  On  the  jjeneral  subject  see  Kirch- 
wey's  Cases  on  Mortfrages,  40-109;  Jones  on  Mortgages  (6th  ed.)  §§  153 
€t  scq.;  Bispham's  Principles  of  Equity  (7th  ed.)  chapter  8. — Ed. 


552  BUEL  V.  BoiGHTOX,  [book  II. 

he  ought  to  pay  ;  and  there  would  be  no  ground  for  an  action  to  recover 
back  the  money  paid  for  interest,  if  the  payment  had  been  made  to 
James  H.  Fuller,  the  payee  of  the  note,  against  whom  the  first  mistake 
was  made.  One  party  would  in  that  case  have  paid,  and  the  other  re- 
ceived just  what  in  justice  and  honesty  ought  to  be  paid  and  received. 
But  the  payment  was  not  made  to  James  H.  Fuller;  and  this  leads 
me  to  notice  that  not  only  the  })laintitf  and  James  H.  Fuller  acted  from 
beginning  to  end  under  the  mistaken  supposition  that  the  note  was 
made  payable,  as  it  should  have  been,  with  interest ;  but  the  note  was 
twice  transferred,  and  both  Almerin  Fuller  and  the  defendant  took 
it  under  the  same  mistake  of  supposing  it  carried  interest.  Xow  as 
against  the  plaintilT,  James  H.  P\iller  had  an  eipiitable  claim  to 
have  the  mistake  corrected,  so  as  to  give  him  interest  on  the  debt. 
Then  Almerin,  having  taken  and  paid  James  for  the  note  as  though 
it  were  on  interest,  had  an  equitable  claim  to  have  the  mistake  cor- 
rected, so  as  to  give  the  interest  to  him.  The  same  thing  is  true  as 
between  the  defendant  and  Almerin.  The  defendant  took  and  paid 
him  for  the  note  as  though  it  carried  interest.  And  thus  by  a  series 
of  mistakes  the  ecpiitable  claim  to  interest  which  was  originally  in 
James  passed  from  him  to  Almerin.  and  from  Almerin  to  the  defend- 
ant ;  so  that,  at  the  time  the  money  was  paid,  the  defendant  was  the 
person  who  was  ('([uitably  entitled  to  receive  it.  Tie  could  not  have 
sued  the  j)laintifr  for  it  at  law  in  his  own  name;  but  in  a  court  of 
equity  the  money  would  have  been  awarded  to  him,  and  not  to  James 
II.  Fuller.  It  has  come  into  the  defendant's  hands  without  .suit,  and 
from  the  person  who  ought  to  pay  it ;  and  I  see  no  sulhcient  rca.son  for 
re(|uiring  it  to  be  refunded.  Whether  the  defendant  could  sue  at 
law  in  his  own  name  to  recover  the  money;  or  whether,  having  fairly 
got  it,  this  action  for  money  had  and  received  to  the  plaintiff's  use 
can  be  maintaineil,  are  very  difTerent  questions.  This  is  an  equitable 
action,  which  may  be  defended  u|)on  tiie  same  eq\iital)le  jirineiples  as 
tho.se  upon  which  it  is  maintained.  .\s  a  genral  rule,  the  question  is, 
to  which  party  ex  fpr/uo  et  bono  does  the  money  belong ;  and  in  this 
case,  I  think  it  belongs  to  the  defendant,  who  has  got  it.  Let  us  sup- 
pose that  the  plaintifT  had  refused  to  pay  the  interest  to  the  defendant  : 
but,  l>eing  liable  to  pay  it  to  some  one.  he  had  |)aid  it,  either  voluntarily 
or  by  compulsion,  to  James  II.  Fuller,  between  whom  and  the  plaintifT 
the  original  mistake  was  made.  James  might  then  have  been  com- 
pelled to  pav  the  money  to  .Mmerin  ;  and  .Mmerin  to  the  defendant. 
Or  if  we  begin  at  the  other  end,  the  defendant  might  have  fallen  bark 
u|)(»n  .Mmerin.  and  compelled  him  to  correct  the  mistake  by  payin;.' 
the  interest;  Almerin  could  have  gone  back  in  like  manner  upon 
James;  nnd  James  upon  the  plaintifT.  .\nd  .so  in  any  way  of  viewing 
the  matter,  the  plaintifT  was  bo\inrl  in  ecpiity  and  good  conscience  to 
pay  the  money;  and  the  defendant  was  the  man  who  in  equity  and 
good  con.scicnce  was  entitled   to  receive  it.     lie  has  got   it ;  and   to 


CllAl'.    11.  I  JACKSOX    r.    MCKNIGHT.  553 

allow  the  ])lainliff  to  recover  it  back,  would  be  to  make  this  the  first 
in  a  circuit  of  four  actions  which  would  end  in  leaving  the  money  just 
where  it  was  at  the  be^nnning. 

It  is  said  that  although  the  plaintiff  has  paid  the  interest  to  the 
defendant,  he  may  be  compelled  to  pay  it  again  in  an  action  on  his 
bond  to  Mrs.  Smith.  But  I  think  not.  It  fully  appears  that  the 
principal  sum  of  money  for  which  the  note  was  given  belonged  to 
James  II.  Fuller;  and  of  course  he  was  entitled  to  the  interest  which 
should  afterwards  accrue  on  that  sum.  If  the  indorsement  made  on 
the  plaintiff's  bond  would  not  of  itself  preclude  Mrs.  Smith  from  re- 
covering the  interest  in  question,  it  would  clearly  be  enough  to  show- 
in  addition,  that  the  plaintiff'  had  corrected  the  error  by  paying  the 
interest.  But  if  the  plaintiff  should  succeed  in  recalling  the  money, 
then  undoubtedly  Mrs.  Smith,  on  proving  the  mistake  in  giving  the 
note,  and  that  the  plaintiff'  had  not  corrected  it,  might  recover  this 
interest  for  the  benefit  of  James  H.  Fuller.  But  by  leaving  the  money 
where  it  is,  the  whole  series  of  mistakes  will  be  corrected,  and  all 
parties,  unless  it  be  the  plaintiff,  will  be  satisfied. 

Judgment  affirmed. 


JACKSOX,  RESPOXDENT  v.   McKXIGHT,  APPELLAXT. 

Supreme  Court  of  Xew  York,  1879. 

[IT  II un,  2.1 

Appeal  from  a  judgment  in  favor  of  the  plaintiff,  entered  upon  the 
report  of  a  referee. 

The  action  was  brouglit  to  recover  money  alleged  to  have  been  paid 
to  the  defendant  under  a  mistake  of  fact. 

Learned,  P.  J.  On  the  23d  of  March,  1875,  the  defendant  was  the 
assignee  and  owner  of  a  hand  and  mortgage  executed  by  the  plaintiff, 
which  had  become  payable  several  years  l)efore.  The  interest  had  been 
payable  annually  on  the  tenth  of  September,  and  it  had  in  fact  been 
paid  up  to  Septeml)er  10,  1874.  On  the  day  first  mentioned,  the 
defendant  stated  to  the  plaintiff  that  $230  of  interest,  payable  Sep- 
temiior  10,  1874,  were  unpaid,  and  the  plaintiff  thereupon  paid  the 
defendant  $230  for  such  interest,  not  remembering,  at  the  time,  that 
the  interest  had  been  paid  to  that  date.  In  January,  1870,  the  defend- 
ant assigned  the  bond  and  mortgage.  After  a  l-ipse  of  two  years  the 
]ihiintiff  sued  to  recover  l)ack  this  money  as  overpaid  by  mistake. 

The  difficultv  is  that,  at  the  time  when  the  plaintiff  made  this  pay- 
ment, he  was  owing  the  defendant  a  much  larger  amount,  overdue  and 
payable  on  the  very  obligation  upon  which  this  payment  was  made. 
Clearly,  if  the  plaintiff  had  handed  the  defendant  $230  to  apply  on 
the  bond  and  mortgage,  he  could  not  have  recovered  that  sum  back. 


554:      ILLINOIS    THIST    AND    SAVINGS    BANK  V.  FELSENTIIAL.      [BOOK    II. 

But  in  this  present  case  he  claims  to  recover,  because  it  was  intended 
as  a  payment  of  interest  whicli  had,  in  fact,  been  paid ;  and  not  as  a 
payment  of  principal,  which  had  not.  The  payment,  however,  was 
really  made  on  the  debt.  The  plaintiff  is,  and  always  will  be,  entitled 
to  a  credit  for  .<o  much  paid  thereon.  The  defendant  and  the  defend- 
ant's assignee  can  enforce  the  Iwnd  and  mortgage  only  for  what  is 
payable,  after  crediting  this  and  all  other  payments.  In  fact,  over 
six  months'  interest  had  accrued  at  the  time  when  this  money  was 
paid,  payment  of  which  (it  would  seem)  might  have  been  demanded, 
the  principal  being  overdue.  And  further,  after  this  money  was  paid 
and  before  the  suit  was  commenced,  even  before  the  defendant  assigned 
the  bond  and  mortgage,  interest  accrued  on  -the  bond  and  mortgage 
more  than  this  amount.  How  many  subsequent  payments  were  Inade 
is  not  shown. 

The  action  to  recover  money  paid  by  mistake  is  sustained,  because 
otherwise  the  party  would  suffer  an  unjust  loss.  It  should  not  be 
extended  to  cases  where  the  relief  is  not  necessary.  It  is  not  necessary 
in  the  present  ca.se,  becau.se  the  j)laintiff  can  protect  himself  whenever 
he  is  sued  on  the  bond  and  mortgage.  Perhaps,  in  such  suit,  the 
holder  of  the  mortgage  may  voluntarily  give  the  plaintiff  the  credit 
to  wliich  he  is  entitled  for  this  payment.  Any  (juestions  between  the 
defendant  and  his  a.^signee,  as  to  the  defendant's  liiibility  on  the  assign- 
ment, they  must  settle  among  themselves. 

The  judgment  should  be  reversed,  a  new  trial  granteil,  the  reference 
discharged,  costs  to  al)ide  the  event. 

Present — Lkahnkd,  P.  J.,  Boakdmax  and  Rockks,  J.T. 

Judgment  reversed,  new  trial  granted,  reference  discharged,  costs  to 
abide  event.^ 


TllK  ILLINOIS  TRl'ST  AXI)  SAVIXCS  r.AXK  OF  rillCAGO 
/.  FKLSLXTIIAL,  KT  AL. 

Appellate  CoriiT  of  Illinois,  1888. 

I -sic  Illinois  Apjivllnte.  \Vl\.\ 

Bailey,  J.  This  was  an  action  of  assumjisit,  brought  l)y  the  Illinois 
Trust  and  Savings  liank  of  Cliieago  against  Herman  F(»Isenthal  and 
others,  for  money  had  and  received.  .\t  the  trial  before  the  court, 
a  jury  l)eing  waived,  the  issues  were  found  for  the  defendants  and 
judgment  was  entered  in  their  favor  for  costs. 

The  money  sued   for  was   paid   l)y  the  pbiiiilifr  to  the  defendants 

'Soc  thi»  dalxiratc  criticinni  of  tlic  priiK  ipal  ciisi'  in  Kecncr's  t^uiiHi-Cdn- 
tractji,  52-50. — Kd. 


CHAP.    II.]      ILLINOIS    TRUST    AND    SAVINGS    BANK  i'.  FELSENTHAL.     555 

upon  two  checks,  dated  October  G,  1885,  drawn  by  Eugene  E.  Prussing 
on  the  plaintiff,  one  being  for  $400,  payable  to  the  order  of  Charles 
Breyer,  and  the  other  for  $1,025,  payable  to  the  order  of  H.  C.  Zim- 
merman. Both  of  these  checks  were  paid  to  the  defendants  through 
the  Chicago  clearing  house.  October  7,  1885,  and  at  the  time  of  such 
payment  they  bore  what  purported  to  be  the  indorsement  of  the 
payees  therein  named.  It  is  now  claimed,  and  the  evidence  tends  to 
show,  that  said  indorsements  were  not  the  genuine  indorsements  of 
said  payees,  but  were  written  on  the  checks  by  or  by  the  procurement 
of  one  Charles  Hertel. 

The  facts  in  relation  to  said  checks,  as  disclosed  by  the  record, 
are  substantially  as  follows :  The  plaintiff  and  defendants  are  bankers 
doing  business  in  the  city  of  Chicago,  and  are  engaged  in  loaning 
money  on  real  estate  securities.  Pressing,  the  drawer  of  the  checks, 
is  an  attorney-at-law  and  at  the  date  of  said  checks  was  acting  for 
the  pla-intiff  in  negotiating  and  placing  its  loans.  A  short  time 
prior  to  that  date,  Charles  Hertel  applied  to  Prussing  for  a  loan 
of  $3,000,  and  offered  as  security  a  lot  which  he  described  as  No.  177 
Fremont  Street,  Chicago,  and  represented  that  there  was  a  three- 
story  building  on  said  lot  which  he  had  just  erected,  Prussing  re- 
ferred Hertcl's  application  for  a  loan  to  the  plaintiff,  and  thereupon 
the  plaintiff's  president  went  upon  the  premises  to  examine  the  suffi- 
ciency of  the  security  offered  and  reported  to  Prussing  that  it  was 
sufficient.  Prussing  examined  the  title  and  found  it  good,  and  then 
prepared  a  note  for  $3,000  and  a  deed  of  trust  on  said  lot  to  secure 
the  same,  and  on  the  26th  day  of  September,  1885,  said  papers  were 
executed  by  Hertel,  and  on  the  same  day  the  deed  of  trust  was  filed 
for  record.  On  the  6th  day  of  October,  1885,  Prussing  notified  the 
plaintiff's  cashier  that  he  was  ready  to  close  the  loan,  and  thereupon 
the  plaintiff  placed  to  Prussing's  credit  the  sum  of  $3,000  which  was 
to  be  paid  over  to  Hertel. 

Before  paying  over  the  money,  Prussing,  as  a  matter  of  precaution, 
required  Hertel  to  make  an  affidavit  in  relation  to  the  building  on 
said  lot  and  the  claims  and  liens  of  mechanics  and  material  men 
thereon,  in  which  Hertel  stated  that  he  was  the  owner  of  said  lot 
and  building;  that  he  did  the  mason  work  therein  himself  and  had 
paid  for  the  labor  and  material  pertaining  to  such  work  in  full ;  that 
he  let  the  carpenter  work,  painting,  roofing  and  plastering  to  H.  C. 
Zimmerman  for  $2,500  and  had  paid  him  $1,475  and  that  the  sum 
of  $1,025  remained  due  said  Zimmerman;  that  he  let  the  plumbing 
and  gas-fitting  to  Charles  Breyer  for  $400,  all  of  which  was  still 
owing  to  him :  that  these  two  sums  were  all  that  owing  on  account 
of  said  building,  and  that  he  had  received  no  notice  of  any  lien 
on  the  premises  from  any  source  whatever. 

After  taking  this  affidavit,  Prussing,  at  the  suggestion  of  Hertel, 
drew  his  checks  for  the  amounts  of  said  claims,  payable  respectively. 


55G       ILLINOIS    TUL'ST    AND    SAVINGS    HANK  V.  FLLSLNTIIAL.      [BOOK    II. 

to  Ziinnierinan  and  Breyer,  and  expressed  on  the  face  of  the  checks 
that  they  were  in  full  of  all  claims  on  account  of  said  building,  and 
delivered  tlieni  to  Ilertel  to  be  by  him  delivered  to  the  payees  therein 
nameil.  Ili-rtel,  instead  of  delivering  tiie  cheeks  to  Zimmerman  and 
Breyer,  caused  the  names  of  said  payees  to  be  indorsed  and  then 
negotiated  the  checks  to  the  defendants,  who  immediately  collected 
them  of  the  plaintiff  through  the  clearing  house,  as  already  stated. 

Shortly  after  the  checks  were  paid  it  was  discovered  that  the  lot 
known  as  Xo.  177  Fremont  Street  had  no  building  whatever  on  it, 
but  that  the  building  examined  by  the^ilaintiff's  president  was,  in  fact, 
standing  on  another  lot.  It  follows  that  neither  Zimmerman  nor 
Breyer  had  any  claim  or  lien  on  the  lot  mortgaged  by  Hertel  to  the 
Plaintiff,  or  to  the  moneys  represented  by  said  checks.  Neither  of 
them  put  any  labor  or  materials  into  any  building  on  the  lot  mort- 
gaged, nor,  so  far  as  api)ears,  into  anv  building  on  any  lot  owned  bv 
Hertel. 

It  is  plain  from  the  foregoing  facts,  that,  as  between  Hertel  on  the 
one  hand,  and  Zimmerman  and  Breyer  on  the  other,  Hertel  was  the 
etpiitable  owner  of  the  moneys  represented  by  said  checks,  and  there- 
fore the  e(piitable  owner  of  the  checks  themselves.  They  were  given 
for  money  which  he  had  borrowed  from  the  plaintiff  and  for  wiiieli 
he  had  given  the  plaintiff  his  note  and  deed  of  trust.  He  was  owing 
Zimmerman  and  Breyer  nothing,  and  they,  therefore,  had  and  could 
have  no  claim  on  said  money  or  any  portion  of  it.  If  Hertel 
had  retained  the  checks  in  his  own  possession,  they  would  have 
been  powerles,s  to  compel  him  to  deliver  the  same  over  to  them. 
Xor  can  they  have  any  claim  upon  the  ])lainti(T  based  upon  the 
check.s,  or  upon  the  payment  of  them  by  the  jjlaintiff  without  their 
indorsement. 

Hertel,  by  .selling  and  delivering  the  checks  to  the  defendants, 
transferred  to  them  his  equitable  title.  We  may  entirely  disri'gard 
the  indorsement  of  the  names  of  the  |)ayees,  and  treat  such  indorse- 
ments as  mere  forgeries.  The  rights  of  the  defendants  in  that  case 
are  the  same  as  though  Hertel  had  sold  them  the  checks  without  in- 
dorsement, which  would  have  amounted  to  an  e(|uital)le  assignment. 
The  defendants'  e(piitable  title  to  the  checks  gave  them  an  erjuitable 
right  to  the  moneys  payable  thereon,  a  right  whieh  they  could 
doubtless  have  enforced  by  a  proj)er  proceeding.  The  plaintiff  then 
having  the  defendants'  money,  which  the  latter  were  (-(initably  en- 
titled to  receive,  we  see  no  ground  uj)on  whieh  said  nu»ney  can  be 
recovered  Imck,  The  action  for  money  had  and  received  is  an 
(■(piitable  action,  and  lies  where  n  defendant  has  received  money 
which  rj  (Pfjuo  rl  bono  he  ought  not  to  retain.  In  this  case,  however, 
the  money  in  controversy  belongs  r.r  (r(j\in  et  bono  to  the  defr-ndants, 
and  it  \n,  therefore,  plain  that  the  plaintiff's  action  therefor  should 
not  be  maintained. 


C'llAl'.    II.  J  PORTER   V.    TULL.  557 

Tlie  judgment  of  the  court  is,  in  our  opinion,  the  proper  result  to 
be  drawn  from  all  tlie  evidence,  and  it  will  therefore  be  atfirmed.^ 

Judgment  affirmed. 


PORTER  V.  TULL. 

Supreme  Court  of  Washington,  1893. 

[G  Washington,  408.] 

The  opinion  of  the  court  was  delivered  by  Dunbar,  C.  J. 

This  is  an  action  for  the  recovery  of  lease  money  paid  in  advance 
according  to  the  terms  of  the  lease.  The  respondent,  F.  M.  Tull,  the 
owner  and  lessor  of  the  leased  premises,  rented  and  leased  to  A.  H. 
Porter  and  C.  F.  Jackson  certain  rooms  and  portions  of  the  building 
known  as  the  Tull  block,  in  the  city  of  Spokane.  The  lessees  paid  the 
stii)ulated  rent  according  to  the  terms  of  the  lease,  monthly  in  ad- 
vance, including  the  month  of  August,  1889.  On  the  4th  day  of 
August,  1889,  the  building  was  destroyed  by  fire,  and  Porter  for  him- 
self, and  as  the  assignee  of  Jackson,  brings  this  action  to  recover  from 
Tull  the  money  paid  in  advance  for  the  remainder  of  the  month  of 
August,  1889.  ' 

It  is  contended  by  the  appellant  that  the  authorities  in  this  country 
fully  sustain  the  proposition  that  when  there  is  a  total  destruction 
of  the  subject-matter  of  the  lease  the  rent  shall  be  apportioned,  and 
the  tenant  is  no  longer  liable  on  his  covenant.  This  proposition  is 
conceded  by  the  respondent  so  far  as  it  applies  to  rent  that  is  due 
for  periods  subsequent  to  the  term  for  which  the  rent  is  paid  in 
advance ;  but  he  insists  that  a  distinction  must  he  made  here,  and 
that  inasmuch  as  the  parties  have  contracted  that  the  money  must  be 
paid  in  advance,  it  follows  that  they  have  apportioned  the  risk,  or 
settled  it  between  them ;  that  the  tenant  assumes  the  risk  of  losing  the 
rent  for  the  time  for  which  he  has  paid  in  advance,  and  the  landlord 
assumes  the  risk  of  losing  subsequent  payments,  besides  the  loss  of  his 
building. 

We  are  unable  to  discover  any  real  foundation  in  logic,  law  or 
justice  for  this  distinction.  The  consideration,  for  which  the  lessee 
pays  a  monthly  rent  in  advance,  is  not  that  he  may  lie  put  in  possession 
of  the  building  for  a  day.  or  two  days,  or  a  week,  but  the  real 
consideration  is  the  use  and  possession  of  the  building  for  a  month. 
That  is  the  valuable  thing  for  which  he  contracts  and  for  whith  he 

'See  U.  S.  V.  Batleau  (ISSS)  i:?0  U.  S.  4:^0,  in  whieh  plaiiitilT  failed  to  re- 
cover salary  paid  to  a  dc  facto  otlicer,  the  court  sayinp:  "But  inasimich  as  the 
claimant,  it  not  an  olHcer  dc  jure,  acted  as  an  officer  dc  facto,  we  are  not  in- 
clined to  hold  that  he  has  received  money,  which  ex  ccquo  et  bono,  he  ought  to 
return." — Ed. 


558  MATTLAGi:    V.    LEWI.  [BOOK    II. 

parts  with  his  money;  and  there  is  an  implied  contract  on  the  part 
of  the  lessor  to  furnish  hira  the  use  of  the  buikling  for  the  time  for 
which  he  pays  for  it.  It  cannot  be  presumed  that  because  a  lessee  pays 
in  advance  that  he  has  in  contemplation  the  lixing  of  a  dilferent 
degree  of  lial)ility  in  case  of  the  destruction  of  the  leased  premises 
by  fire;  neither  is  it  so  intended  by  the  lessor.  It  is  simply  a  prudential 
retjuirement  on  his  part  to  secure  the  rent,  and  to  protect  himself 
against  the  chances  of  losing  it,  and  the  inconvenience  and  troul)le 
of  collecting  it.  Conceding  that  the  lessee  is  not  lial.)le  for  the  destruc- 
tion of  the  leased  building  for  the  remainder  of  the  period  for  which 
the  building  was  leased,  there  must  be  something  more  to  warrant 
the  presumption  that  the  parties  intended  to  estal)lish  a  different 
degree  of  liability  than  the  mere  fact  that  the  money  was  paid  in 
advance.  What  difference  can  there  be  in  principle,  so  far  as  lixing 
liability  is  concerned,  whether  the  contract  is  to  ])ay  the  rent  monthly 
in  advance  or  monthly  at  the  end  of  the  month? 

Great  stress  is  placed  by  respondent  on  the  idea  that  the  parties  have 
made  a  positive  contract,  and  that  they  are  bound  by  its  terms.  The 
contract  in  one  instance  is  as  positive  and  binding  as  in  the  other, 
and  the  liability  to  pay  at  the  end  of  the  month  is  as  much  fixed  by 
such  contract  as  the  liability  to  pay  in  advance  is  fixed  by  the  con- 
tract, and  the  same  reasoning  that  would  prevent  the  recovery  of  the 
money  paid  in  advance  would  compel  the  payment  of  the  money  under 
tbp  f)tb<-r  contract  at  the  end  of  the  month  after  the  destruction  of 
the  building. 

We  are  not  cited  to  any  adjudicated  cases  on  this  point.  The  reason 
probably  is  that  no  one  has  ever  questioned  the  right  of  the  lessee  to 
recover  money  paid  for  that  whicli  he  never  received.  We  think  the 
complaint  states  a  good  cause  of  action,  and  that  the  court  erred  in 
sustaining  the  demurrer.  The  judgment  is  reversed,  and  the  cause 
remanded  with  instructions  to  overrule  the  demurrer,  and  to  proceed  in 
accordance   with   this  opinion.' 

iioYT,  A.NDKHs  and  Scott,  J.T.,  concur. 

Stiles,  J.,  dissents. 


MA'ITT.ACE  V.  LEWI. 

CoM.MON    I'li.as  of   .\i;w   Vokk  City  and  CofNTY.  1803. 

( i;  Misrrllanrnus  Rrporls,  \'}0.'] 

ArPKALby  the  defentlant  from  a  judgment  of  a  District  Tnurt  of  the 
city  f»f  New  York,  rendered  upon  a  trial  itefore  the  justice  thereof 
withotit  a  jury. 

'fontrn:   WfrniT  v.  Vmhin   (1000)    40  App.  Div.   (N.  Y.)    1.15.— Ed. 
'AIho  rcporU'd   in  20  New   York  Snppli'ment   17. — Kd. 


CHAP.    II.]  MATTLAGE    V.    LEWI.  559 

Action  to  recover  moneys  paid  under  a  mistake.  The  facts  are 
stated  in  the  opinion. 

GiEGERicii,  J.  The  plaintiff,  by  mistake,  paid  to  the  Xew  York 
Mercantile  Exchange  the  annual  dues  on  a  ticket  of  membership 
thereof  standing  in  the  name  of  one  W.  B.  Pojie,  and  held  by  the 
defendant  as  collateral  security  for  a  loan.  The  defendant  first  learned 
of  the  mistake  when  he  offered  payment  for  the  dues  on  said  ticket 
to  the  superintendent  of  the  said  exchange,  who  informed  him  that 
he  (defendant)  could  not  pay  them  a  second  time,  as  they  had 
been  already  paid  by  somebody  else.  Thereafter  return  of  the  amount 
paid  by  the  plaintiff  to  the  said  exchange  for  such  dues  was  demanded 
of  the  defendant,  who  refused  to  pay  the  same.  This  action  was 
then  brought.  The  defendant  pleaded  the  general  issue.  Upon  the 
foregoing  state  of  facts  the  justice  rendered  judgment  in  favor  of  the 
plaintiff,  and  the  defendant  has  brought  this  appeal.  The  judg- 
ment, in  our  opinion,  cannot  be  sustained  without  a  disregard  of  well- 
settled  rules.  In  order  to  maintain  an  action  for  money  paid  under 
mistake  it  is  not  sufficient  for  a  plaintiff  to  prove  that  he  has  conferred 
a  benefit  upon  the  defendant  by  reason  of  such  mistake.  It  must 
appear  that  the  defendant  has  actually  received  money,  or  that  which 
the  parties  have  treated  as  money.  It  is  not  sufficient  that  the  defend- 
ant received  a  credit  in  account  to  which  he  is  not  entitled.  Keener 
.  Quasi-Contracts,  139,  and  cases  cited.  See  Brundage  v.  Village  of 
Port  Chester,  102  X.  Y.  494.  In  the  case  at  bar  the  money  was 
not  received  Ijy  tlio  defendant.  The  mistake  was  made  by  persons 
other  than  himself,  and  lie  did  not  in  any  manner  contri1)ute  to  the 
occurrence  of  the  same. 

Applying  to  this  case  the  foregoing  principles,  it  follows  that  the 
judgment  should  be  reversed,  and  judgment  absolute  for  dismissal  of 
the  complaint  should  be  directed  in  favor  of  the  defendant,  with 
costs.  ^ 

BiscHOFF,  J.,  concurs. 

Judgment  accordingly. 

*See  generally  Mayor  of  New  York  r.  Erben  (18^3)  10  Bosw.  189  (affirmed 
on  appeal  (18(iS)  in  3  Abb.  App.  Dec.  2.55;);  RoUlen  r.  State  (1886)  103 
N.  Y.  1;  Franklin  Bank  r.  Raymond  (1829)  3  Wend.  G9:  Compare  Bize  v. 
Dickason  (1786).  1  T.  R.  285.  ante  353. 

In  Patterson  v.  Prior  (18C2)  18  Ind.  440,  it  was  bold  and  ri-ibtly  tliat  a 
person  unjustly  convicted  and  imprisoned  (the  court  having  no  jurisdiction) 
might  waive  the  tort  and  recover  in  asstimpsit  from  anyone  deriving  a  benefit 
from  his  services,  as.  for  example,  the  lessee  of  the  convict.  In  Glass  Iron  & 
Steel  Co.  r.  Harvey  (1897)  116  Ala.  05(3,  likewise  a  convict  case,  this  principle 
was  lost  sight  of. — Ed. 


560  LEATHER  MANUFACTURERS'  BANK  l\  MERCHANTS'  BANK.   [BOOK    II. 


(&)  The  Necessiti/  of  a  Demand. 

LEATHER  MAXUFACTURKHS-   1?A.\K    r.   MKRCII ANTS' 

I'.AXK. 

Supreme  Court  of  tiii;  Ixited  States,  1888. 

[128  United  States,  2G.] 

The  original  action  was  brought  December  7,  1877,  by  the  Mer- 
chants' National  Bank  of  the  city  of  New  York  against  the  Leatlier 
Manufacturers'  National  Bank  to  recover  back  the  sum  of  $17,500 
paid  on  March  10,  1870,  to  the  defendant,  the  holder  of  a  check 
drawn  upon  the  plaintiff  for  that  amount,  with  interest  from  June  20, 
1877.  The  defendant,  among  other  defences,  pleaded  the  statute  of 
limitations,  and  also  that  the  plaintiff  never  demanded  repayment 
or  tendered  the  check  to  the  defendant  until  long  since  the  commence- 
ment of  this  action.' 

Mr.  Justice  Gray  delivered  the  opinion  of  the  court. 

The  principal  question  argued  is  whether  this  action  was  barred 
by  the  statute  of  limitations  of  New  York,  by  which  any  action 
upon  a  contract,  obligation  or  liability,  ex|)ress('(l  or  im|)lied.  except 
a  judgment  or  a  sealed  instrument,  must  be  brought  within  six  years 
after  the  cause  of  action  accrues.  Code  of  1855,  §  91 ;  Code  of  1876, 
§  382. 

The  question  then  is  whether,  if  a  bank,  ujxin  which  a  check  is 
drawn  payable  to  a  particular  jx-rson  or  order,  j)ays  the  amount  of 
the  check  to  one  presenting  it  with  a  forged  indorsement  of  the  payee's 
name,  both  parties  supposing  the  indorsement  to  be  genuine,  the 
right  of  action  of  the  bank  to  recover  back  the  money  from  the  per- 
son so  obtaining  it  accrues  immediately  upon  the  payment  of  the 
money,  or  only  after  a  demand  for  its  repayment. 

In  order  to  avoid  confusion  in  dealing  with  this  question,  it  is  im- 
portant to  keep  in  mind  the  dilTcrence  between  the  liability  of  a 
bank  to  a  depositor,  and  the  liability  to  the  bank  of  a  person  who  has 
received  money  from  it  upon  a  forged  check  or  order. 

It  is  true  that  the  liability,  in  either  case,  is  that  of  debtor,  not 
that  of  trustee  or  bailee;  but  there  the  resemblance  ceases. 

The  sfiecific  mf)ney  deposited  doc-;  not  remain  the  money  of  ibc  dc- 
po.Mitor,  but  becomes  the  property  of  the  bank,  to  be  invested  and 
\in('(]  as  it  jjleases;  its  obligatit)n  to  the  depositor  is  only  to  jiay  out  an 
e<jual  amount  upon  liis  demand  or  order;  and  proof  of  refusal  or 
neglect  to  |)ay  upon  such  demand  or  order  is  necessary  to  sustain  an 
action  by  the  depositor  against  the  bank.    The  bank  cannot  discharge 

'The  other  factu  of  the  case  are  omitted. — Ed. 


CHAP.  II.]    LEATHER  MAXUFACTL'KEKS' BANK  V.  merchants' BANK.    5G1 

its  liability  to  account  with  the  depositor  to  the  extent  of  the  de- 
posit, except  by  payment  to  him,  or  to  the  holder  of  a  written  order 
from  him,  usually  in  the  form  of  a  check.  If  the  bank  pays  out  money 
to  the  holder  of  a  check  upon  which  the  name  of  the  depositor,  or  of 
a  payee  or  indorsee,  is  forged,  it  is  simply  no  payment  as  between 
the  bank  and  the  depositor;  and  the  legal  state  of  the  account  between 
them,  and  the  legal  liability  of  the  bank  to  him,  remain  just  as  if  the 
pretended  payment  had  not  been  made.  First  Xational  Bank  v. 
Whitman,  di'u.  S.  343. 

But  as  between  the  bank  and  the  person  obtaining  money  on  a 
forged  check  or  order,  the  case  is  quite  different.  The  first  step  in 
bringing  about  the  payment  is  the  act  of  the  holder  of  the  check,  in 
assuming  and  representing  himself  to  have  a  right,  which  he  has 
not,  to  receive  the  money.  One  who,  by  presenting  forged  paper  to 
a  bank,  procures  the  payment  of  the  amount  thereof  to  him,  even  if  he 
makes  no  express  warranty,  in  law  represents  that  the  paper  is  genuine, 
and,  if  the  payment  is  made  in  ignorance  of  the  forgery,  is  liable  to 
an  action  by  the  bank  to  recover  back  the  money  which,  in  equity 
and  good  conscience,  has  never  ceased  to  be  its  property.  It  is  not 
a  case  in  which  a  consideration,  which  has  once  existed,  fails  by 
subsequent  election  or  other  act  of  either  party,  or  of  a  third  person; 
but  there  is  never,  at  any  stage  of  the  transaction,  any  consideration 
for  the  payment.  Espy  v.  Bank  of  Cincinnati,  18  Wall.  604;  Gurney 
V.  Womersley,  4  El.  &  Bl.  133;  Cabot  Bank  v.  Morton,  4  Gray,  156; 
Aldrich  V.  Butts,  5  R.  I.  218 ;  White  v.  Continental  Bank,  64  X.  Y.  316. 

Whenever  money  is  ])aid  upon  the  representation  of  the  receiver 
that  he  has  either  a  certain  title  in  property  transferred  in  consider- 
ation of  the  payment,  or  a  certain  authority  to  receive  the  money 
paid,  when  in  fact  he  has  no  such  title  or  authority,  then,  although 
there  be  no  fraud  or  intentional  misrepesentation  on  his  part,  yet 
there  is  no  consideration  for  the  payment,  and  the  money  remains, 
in  equity  and  good  conscience,  the  property  of  the  payer,  and  may  be 
recovered  back  by  him,  without  any  previous  demand,  as  money  had 
and  received  to  his  use.  His  right  of  action  accrues,  and  the  statute 
of  limitations  begins  to  run,  immediately  upon  the  payment. 

Thus,  in  the  early  case  of  Bree  v.  Holbech,  2  Doug.  654,  where  an 
administrator  received  the  amount  of  the  mortgage  money  upon  his 
assignment  of  a  mortgage  ])ur]iorting  to  be  made  to  the  deceased, 
but  in  fact  a  forgery,  of  which  both  parties  were  ignorant,  it  was 
held  by  Lord  Mansfield  and  the  Court  of  King's  Bench  that  the 
right  of  action  to  recover  back  from  the  administrator  the  money 
so  paid  was  barred  by  the  statute  of  limitations  in  six  years  from  the 
time  of  the  payment. 

So,  in  Utica  Bank  v.  Van  Gieson.  18  Johns.  485,  where  a  promis- 
sory note  payable  at  the  Bank  of  Geneva  was  left  by  the  indorsers  with 
the  Utica  Bank  for  collection,  and  sent  by  it  to  the  Bank  of  Geneva 


562   LEATHER  MANUFACTURERS'  BANK  V.  MERCHANTS'  BANK.    [BOOK  11. 

for  that  purpose,  and  the  amount  was  afterwards  paid  hy  tlie  Utica 
Bank  to  the  indorsers  upon  the  mistaken  supposition  that  it  had  been 
paid  to  the  Bank  of  Geneva  by  the  maker,  when  in  faet  it  had  not, 
and  it  was  not  pretended  that  the  Utica  Bank  had  been  guilty  of 
any  negligence,  the  Supreme  Court  of  Xew  York  held  that  notice  of 
the  fact. that  the  note  had  not  been  paid  by  the  maker  was  unneces- 
sary to  maintain  an  action  by  the  Utica  Bank  to  recover  back  the 
money  from  the  indorsers ;  and  Chief  Justice  Spencer  said :  "The 
plaintiff's  ground  of  action,  then,  is  that  the  money  was  paid  to  the 
defendants  under  a  mistake  of  facts.  The  defendants  are  not  bailees 
or  trustees  of  the  money  thus  received.  It  was  paid  and  received,  as 
their  money,  and  not  as  money  to  be  kept  for  the  plaintiffs.  In  such 
a  case,  it  was  not  necessary  to  make  a  demand  prior  to  the  suit ;  for 
a  request  was  not  essential  to  the  maintenance  of  the  action ;  nor 
did  the  defendants'  duty  to  return  the  money  erroneously  paid  arise 
upon  request." 

In  Bank  of  United  States  v.  Daniel,,  the  acceptor  and  indorsers, 
upon  taking  up  a  bill  of  exchange  for  ten  thousand  dollars,  which 
had  been  duly  protested  for  non-payment,  paid  ten  per  cent,  as 
damages,  under  a  mistake  as  to  the  local  law  upon  the  subject.  Upon 
a  bill  in  equity  to  relieve  against  the  mistake  and  recover  back  the 
money,  this  court,  while  holding  that  such  a  mistake  gave  no  ground 
for  relief,  also  held  that,  if  it  did,  the  statute  of  limitations  ran,  in 
equity  as  well  as  at  law,  from  the  time  of  the  payment,  saying:  "If 
the  thousand  dollars  claimed  as  damages  were  paid  to  the  bank  at 
the  time  the  bill  of  exchange  was  taken  up,  then  the  cause  of  action 
to  recover  the  money  (had  it  been  well  founded)  accrued  at  the  time 
the  mistaken  payment  was  made,  which  could  have  been  rectified 
in  equity,  or  the  money  recovered  back  l)y  a  suit  at  law."  12  Vqt. 
32,  5G.  ^ 

In  Dill  r.  Wareham,  7  Met.  138,  the  Supreme  Judicial  Court  of 
Massachu.setts,  .sju-aking  by  Chief  .Tustiec  SiiAW.  held  that  a  ])arty 
receiving  money  in  advance,  on  a  contract  which  he  had  no  authority 
to  make  and  afterwards  refused  to  fulfil,  was  liable  to  the  other 
party  in  an  action  for  money  had  and  received,  without  averment  or 
proof  of  any  previous  demanrl.  And  in  Sturgis  v.  Preston.  134  Mass. 
37'.^,  where  land  was  sold  for  a  certain  sum  by  the  srpiare  foot,  and 
the  purcha.ser,  relying  on  the  vendor's  statement  of  the  number  of  feel. 
made  payment  accordingly,  and  afterwards  discovered  that  the  numlur 
had  Itct'n  overstated,  but  disclaimed  all  charge  of  fraud  or  fraudulent 
concealment  on  the  part  of  the  vendor,  it  was  held  that  the  right  of 
action  to  recover  back  the  excess  paid  accrued  immediately,  without 
any  j)reviou9  demand,  and  was  barred  by  the  statute  of  limitations  in 
nix  years  from  llw  date  of  the  j>ayni('nt.  See  also  Earle  v.  Bickford. 
(\  Allen,  54!»;  BIcthen  v.  Lovering,  r.H  Maine,  437. 

The  judgment  of  the  Circuit  Court  in  the  present  case  appears  \<y 


CHAP.  II.]   LEATHER  MANUFACTURERS'  BANK  V.  MERCHANTS'  BANK.    5G3 

have  been  based  upon  the  decision  in  Merchants'  Bank  v.  First  Na- 
tional Bank,  4  Hughes,  1,  which  proceeds  upon  grounds  inconsistent 
with  the  principles  and  authorities  above  stated,  and  cites  no  case 
except  the  very  peculiar  one  of  Cowper  i'.  Godmond,  9  Bing.  748; 
S.  C.  3  Moore  &  Scott.  219;  in  which  the  right  of  action  to  recover 
Ijack  money  paid  for  a  grant  of  an  annuity,  the  memorial  of  which  was 
defective,  was  held  not  to  accrue  until  the  grantor  elected  to  avoid  it 
on  that  ground,  the  annuity  apparently  being  considered  as  not  ab- 
solutely void,  but  as  voidable  only  at  the  election  of  the  grantor.  See 
Churchill  r.  Bertrand,  3  Q.  B.  568;  S.  C.  2  Gale  &  Dav.  548. 

Although  some  of  the  opinions  of  the  Court  of  Appeals  of  New 
York,  in  the  cases  cited  at  the  bar,  contain  dicta  which,  taken  by 
themselves,  and  without  regard  to  the  facts  before  the  court,  might 
seem  to  support  the  position  of  the  defendant  in  error,  yet  the  judg- 
ments in  those  cases,  upon  full  examination,  appear  to  be  quite  in 
accord  with  the  views  which  we  have  expressed. 

The  cases  of  Thomson  v.  Bank  of  British  North  America,  82  X.  Y. 
1,  and  Bank  of  British  Xorth  America  v.  Merchants'  Bank,  91  X.  Y". 
lUG,  were  actions  by  depositors  against  their  respective  bankers,  and 
were  therefore  held  not  to  be  barred  until  six  years  after  demand. 

In  Southwick  v.  First  Xational  Bank,  84  X.  Y^.  420,  the  decision 
was  that  there  was  no  such  mistake  as  entitled  the  party  paying  the 
money  to  reclaim  it ;  and  in  Sharkey  v.  Mansfield,  90  X.  Y.  227,  it 
was  adjudged  that  money  paid  by  mistake,  but  received  with  full 
knowledge  of  all  the  facts,  might  be  recovered  back  without  previous 
demand ;  and  what  was  said  in  either  opinion  as  to  the  necessity  of 
a  demand  where  both  parties  act  under  mistake  was  obiter  dictum. 

Two  other  cases  in  that  court  were  decided  together,  and  on  the 
same  day  as  Bank  of  British  Xorth  America  v.  Merchants'  Bank, 
above  cited. 

In  one  of  them,  the  defendants,  who  had  innocently  sold  to  the  plain- 
tiffs a  forged  note  as  genuine,  and,  upon  being  informed  of  the  forgery 
and  requested  to  pay  back  the  purchase  money,  had  expressly  prom- 
ised to  do  so  if  the  plaintiffs  should  be  obliged  to  pay  a  third  person 
to  whom  they  had  in  turn  sold  the  note,  were  therefore  held  not  to 
be  discharged  from  their  liability  to  refund  by  the  plaintiffs'  having 
awaited  the  determination  of  a  suit  by  that  person  against  them- 
selves, before  returning  the  note  to  the  defendants.  Frank  v.  Lanier, 
91  X.  Y.  112. 

In  the  other  case,  a  bank,  which  had  paid  a  check  upon  a  forged 
indorsement,  supposed  by  both  parties  to  be  genuine,  was  held  entitled 
to  recover  back  the  money,  with  interest  from  the  time  of  payment, 
necessarilv  implying  that  the  right  of  action  accrued  at  that  time. 
Corn  Exchange  iBank  r.  Xassau  Bank.  91  X.  Y.  74. 

In  the  case  at  bar,  as  in  the  case  last  cited,  the  plaintiff's  right  of 
action  did  not  depend^  upon  any  express  promise  by  the  defendant 


564  OILLETT    V.    nUKWSTEH.  [bOOK    11. 

after  the  discovery  of  the  mistake,  or  upon  any  demand  by  the  plain- 
tiff upon  the  defendant,  or  by  the  depositor  or  any  other  person  upon 
the  plaintiff;  but  it  was  to  recover  back  the  money,  as  paid  without 
consideration,  and  had  and  received  by  the  defendant  to  the  phiintiff's 
use.  That  right  accrued  at  the  date  of  the  payment,  and  was  barred 
by  the  statute  of  limitations  in  six  years  from  that  date.  For  this 
reason,  without  considering  any  other  ground  of  defence,  the  order 
must   be 

Judgment  reversed^  and  case  remanded  to  the  Circuit  Court, 
with  directions  to  set  aside  the  verdict  and  to  order  a  new  trial. 

Mr.  Justice  Blatchford  did  not  sit  in  this  case,  or  take  any  part 
in  the  decision. 

Mr.  Chief  Justice  Fuller  and  Mr.  Justice  Lamar  were  not  mem- 
bers of  the  court  when  this  case  was  argued,  and  took  no  part  in  its 
decision.^ 


GILLETT  r.  BREWSTER. 

Supreme  Court  of  Vermont,  1890. 

[r,2  Vermont,  312.] 

General  assumpsit.  Heard  on  the  report  of  a  referee  at  the  Sep- 
tember Term,  1880,  Muxsox,  J.,  presiding.  Judgment  for  the  defend- 
ant.    The  plaintiff  excepts. 

The  plaintiff  had  employed  the  defendant  for  two  successive  winters 
to  cut  and  draw  logs  for  liim  at  an  agreed  price  per  thousand,  and 
had  paid  him  various  sums  from  time  to  time.  At  the  end  of  the 
Wfcond  winter  the  defendant  brought  suit  to  recover  the  balance  due, 
nnn  the  plaintiff  paid  him  two  hundrecl  dollars  '*on  account."  Subse- 
quently, becoming  satisfied  that  there  was  in  part  an  overi)ayment,  he 
brought  this  suit  for  the  exe<*ss.  Th«'  referee  found  the  fact  of  an 
overpayment,  but  that  the  plaintifT  had  never  notified  the  defendant 
of  his  claim  in  this  respect,  or  d(Miiaiided  repayment. 

The  opinion  of  the  court  was  delivered  by  Hovfi:.  Cli.  .1. 

The  only  question  presented  for  our  consideration  in  this  case  is, 
whether  an  overf)ayment.  voluntarily  made,  through  th(»  mistake  or 
negligence  of  the  party  making  iho  same,  and  not  induced  '\v  the 
fraud  of  the  party  receiving  it.  can  be  recovered  back  without  a 
previous  notice  and  demand. 

'Soc  an  elftJKirntc  note  in  17  .\ni.  St.  Hop.  HM!).  H!»SH)tt).  Soo  iiIho  Nntionnl 
Bank  v.  Spntcn  (IHl)'))  41  \V.  Vn.  27;  SlurniH  v.  Pro^ton  (ISS.T)    1.S4  Muhh.  372. 

AnrI  H«T  .lii(l(;p  KKKNr.u's  friticiHiii  of  tlio  principal  caHo  in  liin  Trcntise  on 
QunHi-ContractH,  1421.'>:{. — Kn. 


CHAP.  II.]  FULLER  V.    TUSKA.  506 

We  regard  the  case  of  Bishop  v.  Brown,  51  Vt.  330,  decisive  of 
the  question.  It  is  there  said :  "'If  the  mistake  was  induced  by  the 
fraud  of  the  party  receiving  the  same,  and  he  had  knowledge  of  the 
overpayment  at  the  time,  or  jf  he  had  subsequently  discovered  the 
mistake,  the  duty  was  then  cast  upon  him  to  rectify  the  mistake  and 
repay  the  money.  Thereafter  he  knowingly  has  the  money  of  the 
other  party  to  the  transaction  in  his  hands,  which  he  holds  against 
equity  and  good  conscience,  and  there  is  no  apparent  reason  for  any 
demand  for  the  repayment  of  the  money  before  suit.  But  where  the 
overpayment  arises  from  the  mistake  or  negligence  of  the  party 
making  it,  and  without  the  fault  or  knowledge  of  the  party  receiving 
it,  it  is  reasonable  that  the  party  so  receiving  the  overpayment  should 
not  be  subject  to  a  suit  until  he  has  been  notified  of  the  overpayment 
and  called  upon,  and  had  a  reasonable  opportunity  to  rectify  the 
mistake." 

That  the  payment  was  expressed  to  be  "on  account,"  and  not  in 
final  settlement,  can  make  no  difference  with  the  rights  of  the  parties, 
but  serves  only  as  evidence  of  the  mistake  or  negligence  of  the  party 
making  the  overpayment,  in  supposing  that  he  was  only  paying  on 
account,  when  in  reality  he  was  paying  a  larger  sum  than  the  whole 
amount  actually  due.  Xor  can  it  affect  their  rights  that  the  amount 
of  such  payment  was,  at  the  time  of  suit  brought,  unascertained.  Xo 
formal  demand  or  of  any  specific  sum  is  necessary.  '^Whatever 
language  gives  him  (the  defendant)  notice  of  the  overpayment,  and 
calls  upon  him  to  rectify  the  mistake,  is  sufficient."  "The  money  all 
the  time  is  the  property  of  the  party  making  the  overpayment,  but 
having  come  into  the  possession  of  the  other  party  without  his  fault 
or  knowledge,  he  is  entitled  to  be  notified  of  the  fact  that  he  has  the 
money  in  his  possession,  and  to  be  called  upon  to  Tectify  the  mistake, 
before  he  is  subject  to  a  suit  for  the  recovery."  Bishop  v.  Brown, 
supra. 

Judgment  affirmed. 


FTJLLEE  V.  TUSKA. 

City  Court  of  New  York,  1891. 

[13  New  York  Supplement,  580.] 

Ehrlicti.  C.  J.  The  complaint  alleges  that  the  plaintiff  loaned 
to  the  defendant  150  shares  of  the  stock  of  the  Chicago,  ^lilwaukee  & 
St.  Paul  l\ailroad  Company,  which  the  defendant  failed  to  return, 
to  plaintiff's  damage  $744.35 ;  that  the  defendant  thereupon  acknowl- 
edged an  indebtedness  to  the  plaintiff  to  that  amount  on  the  transaction 
stated,  paid  on  account  thereof  $1.30,  leaving  $743.05  due.     The 


666  BOWER  V.  THOMPSON.  [book  ir. 

defendant  demurred,  on  the  ground  that  the  complaint  did  not  state 
facts  sutlicient  to  constitute  a  cause  of  action.  The  demurrer  was 
overruled  at  special  term,  and  properly  so.  The  complaint  in  sub- 
stance shows  that,  after  the  defendant  failed  to  return  the  l)orro\ved 
stock,  and  acknowledged  in  consequence  iiis  liability  in  tiie  form  of 
an  indebtedness  for  $74-1.35,  the  plaintiti  waives  the  tort,  and  sues 
upon  the  contract  to  pay  this  amount  of  money.  Xo  demand  for  the 
stock  was  necessary  under  such  circumstances,  and  the  commence- 
ment of  the  action  is  a  sufficient  demand  for  the  money.  Tiie  Code 
has  done  away  with  all  technical  rules  of  pleading,  and  nothing  more 
reed  be  alleged  than  is  necessary  to  be  proved.  Code,  §  518;  Mann  v. 
Morewood,  5  Sandf.  504;  Glenny  v.  Hitchins,  4  How.'Pr.  OS;  Plank- 
Eoad  Co.  V.  Rust,  5  How.  Pr.  390.  And  the  complaint  suthciently 
sets  out  the  cause  of  action.  It  follows  that  the  demurrer  was  properly 
overruled,  and  that  the  interlocutory  judgment  must  be  affirmed,  with 
costs. 


BOWER   ET   AL.    r.   TlTO:\rPSOX. 

Supreme  Court  of  Xew  York.  1892. 

[19  New  York  Supplement,  503.] 

Appe.vl  from  Cayuga  county  court. 

Action  by  M.  E.  Bower  and  another  against  Edwin  B.  Thompson 
for  money  had  and  received.  Erom  a  judgment  affirming  a  judg- 
ment for  |)hiintiff's  in  justice  court,  defeiidaiit  aj)|)eals.     Affirmed. 

Argued  before  Dwkmit,  P.  J.,  and  M.vccj.mheu  and  Lewis,  .JJ. 

DwioiiT,  P.  J.  The  action,  so  far  as  presented  by  this  appeal,  was 
for  money  iiad  and  reci'ived,  being  tlie  sum  of  $*^5  paid  to  the 
defendant  l»y  the  plaintiffs  a  second  time,  by  mistake  of  the  latter. 
The  only  defence  here  suggested  was  the  absence  of  a  deiiumd  before 
action  l)rought.  Whether  the  defence  was  tenable  dej)ends  upon 
whether  the  mistake  was  mutual  and  the  overpayment  innocently  re- 
ceived l»y  the  defendant;  or  wli(>ther  it  was  by  mistake  of  the  plaintilTs 
only,  and  the  defenrlant  knew  at  the  time  that  he  was  receiving  money 
to  which  he  was  not  entitled.  In  the  former  case  the  obligation  to 
refund  did  not  arise  until  notice  of  the  mistake  and  a  denuind  of 
repayincnt  (Mayor,  etc.  r.  Erbcn.  3  ,\bb.  Dec.  25.');  Southwick  r. 
Bank.  H4  X.  Y.  130)  ;  in  tlie  latter  itjiro.se  upon  the  instant  the  money 
wa.H  received.  Sharkey  v.  Mansfield.  00  X.  Y.  228.  The  distinction 
and  the  reasons  for  it  are  obvious.  In  his  opinion  the  learned  county 
judge  says  the  circumstances  iiuliciite  to  him  that  th(»  case  is  governed 
by  the  authority  la-^t  cit«'d,  "and  tiuit  the  defendant  knew  at  the  time 
of  the  settlement  that  he  was  receiving  $25  that  he  was  not  entitled 


CHAP.    II.]  BOWER    V.    THOMPSON.  567 

to."  Such,  it  may  l)e  presumed,  was  also  the  effect  of  the  testimony 
upon  the  mind  of  the  justice;  and  the  case  is  not  one  in  which  either 
the  county  court  or  this  court  should  interfere  with  the  conclusion  of 
fact.  That  conclusion  does  no  violence  to  the  evidence,  even  as  it 
appears  more  or  less  imperfectly  reproduced  in  the  return,  while  the 
justice  had  the  advantage  of  hearing  the  full  oral  testimony  of  the 
parties  and  observing  their  appearance  on  the  stand.  And,  the  fact 
being  found  that  the  defendant  knew  at  the  time  of  receiving  the  over- 
payment that  it  was  such,  the  case  was  within  the  second  category 
above  described,  and  no  demand  was  necessary  to  recover  the  amount. 
The  judgment  appealed  from  must  be  affirmed. 

Judgment  of  the  county  court  of  Ca}aiga  county  affirmed,  with 
€Osts.    All  concur.^ 

'In  Martin  v.  Home  Bank  (1899)  100  X.  Y.  190,  201,  it  is  said:  "Nor  was 
any  demand  upon  the  defendant  for  the  payment  of  the  money  necessary  be- 
iore  this  action  was  commenced.  The  defendant  was  not  a  bailee  or  trustee 
that  had  rightfully  become  possessed  of  the  money,  but  a  party  that  had  con- 
sciously received  what  did  not  belong  to  it.  The  defendant  received  and  held 
the  money  as  its  own,  and  the  duty  to  restore  it  arose  at  the  moment  it  was 
received,  and  existed  at  all  times  thereafter.  Sharkey  v.  Mansfield,  90  X.  Y. 
227,  229." 

The  eases  on  the  subject  of  demand  as  a  prerequisite  to  recovery  are  not 
numerous,  due  to  the  fact,  it  would  seem,  that  a  demand  is  ordinarily  made 
before   beginning    legal    proceedings. 

An  English  case  frequently  cited  is  Freeman  v.  JeflTries  (1869)  L.  R.  4  Ex. 
189,  but  in  this  value  of  the  leasehold  assigned  was  determined  by  experts,  and 
the  valuation — although  certain  items  were  omitted — was  really  in  the  nature 
of  a  compromise.  Tlie  question  of  demand  was  therefore  obiter,  although  it 
was  argued  and  carefully  considered  by  the  court. 

For  American  practice,  tlie  following  cases  will  probably  suffice:  Taggart 
V.  Trevanny  (1891)  1  Ind.  App.  339;  Baldwin  v.  Hutchinson  (1S03)  8  Ind. 
App.  454;  Bogle  v.  Gordon  (1888)  39  Kas.  31;  Willis  v.  French  (1892)  84  Me. 
593;  Walker  v.  Bradley  (1825)  3  Pick.  261;  Gould  v.  Emerson  (1894)  160 
Mass.  438;  Northampton  National  Bank  r.  Smith  (1897)  169  Mass.  281; 
Deaver  v.  Bennett  (1890)  29  Neb.  812;  Mayor  of  N.  Y.  v.  Erben  (1863)  10 
Bosw.  189  (on  appeal,  1868,  3  Abb.  App.  255):  Reid  v.  Supervisors  (1891) 
14  N.  Y.  Supp.  595;  Leach  v.  Vining  (1892)  18  N.  Y.  Supp.  822:  Wyckoff  r. 
Curtis  (1894)  7  Misc.  (N.  Y.)  444:  Hamer  r.  Brainard  (1891)  7  Utah.  245; 
Stoddard  r.  Chapin    (1843)    15  Vt.  443;   Braincrd   v.  Champlain  Transp.  Co. 

(1857)    29  Vt.  154;  Bishop  r.  Brown    (1879)    51  Vt.  330:   Varnum  v. 

Highgate    (1893)    65  Vt.  416. 

In  several  of  the  above  cases,  the  question  of  the  running  of  interest  before 
and  after  demand  is  discussed. — Ed. 


5G8  DUKE    OF    AUGYLE    J'.    IIALCRAIQ.  [BOOK    II. 

(c)  The  Effect  of  a  Change  of  Position  by  Either  Party. 

KER  r.  RUTHERFORD. 

Court  of  Sessions  of  Scotland,  1684. 

[Morison's  Dictionary  of  Decisions,  2928.] 

A  DEBTOR,  who  had  paid  to  the  obtainer  of  a  decreet  of  furth- 
coming, and  got  his  discharge,  being  thereafter  decerned  at  the  in- 
stance of  an  assignee,  whose  assignation  had  been  intimated  before 
the  arrestment,  pursued  the  arrester  upon  the  warrandice  in  his  dis- 
charge. 

Alleged  for  the  defender;  He  could  not  be  liable,  seeing  suian  re- 
cepit,  and  the  pursuer  had  not  obtruded,  as  he  ought,  the  anterior  inti- 
mation of  the  assignation,  during  the  process  of  furthcoming;  which, 
if  he  had  done,  the  arrester  would  have  secured  himself  against  the 
other  estate  of  the  common  debtor,  who  is  now  become  bankrupt. 

The  Lords  sustained  the  allegeance,  and  assoilzied. 

Fol.  Die.  V.  1.  p.  186.   Ilarcarse,  (Arrestment.)  No.  81.  p.  15. 


DUKE  OF  ARGYLE  v.  HALCRAIG. 

Court  of  Sessions  of  Scotland,  1723. 
[Morison's  Dictionary  of  Decisions,  2929.] 

Archibald  Earl  of  Argyle.  anno  1672,  granted  bond  to  Mr.  John 
Eliies  for  ')()()()  mcrks ;  who,  of  the  same  date,  gave  a  back-bond,  de- 
claring, "That  he  had  a  bond  from  Donald  and  Ronald  ('ampl)ells, 
for  £2250  Scots,  whereof  if  he  received  any  i)art,  he  obliged  him,  his 
heirs,  &c.  to  allow  the  same  in  payment  of  the  5000  merks."  This  bond 
of  5000  merks,  coming  bv  progress  into  the  jxTson  of  the  Tjord  Hal- 
craig,  the  late  Duke  of  .Argyle  granted  eorroboratiou  thereof,  nar- 
rating, "That  in  regard  this  sum  was  by  progress  in  the  person  of 
the  Lord  llalcraig,  therefore  he  obliges  himself  to  pay  the  same."  All 
this  while,  the  back-bond  was  entirely  unknown,  either  to  the  late 
or  pn-sent  Duke,  till  .July  1715;  at  wliieli  time,  by  jiaynient  made,  and 
imputing  the  sums  contained  in  hoiiald  and  Uonald  Canipbeirs  bond, 
the  5000  merks  bond  was  not  only  extinguished,  but  a  ('f)nsiderable 
sum  over  indrhitr  paid;  whereuj)on  a  |)ro('(ss  was  intented  against 
the  Representatives  of  the  late  Lord   llalcraig,  concluding  an  ex- 


CIIAr.    II.]  DUKE    OF   ARGYLE    V.    HALCRAIG.  569 

tinetion  of  the  bond,  and  repetition  of  £1277  Scots,  paid  over  and 
above  what  was  really  due. 

It  was  pleaded  for  the  defenders,  Imo,  That  the  Duke  corrobo- 
rating the  bond  in  the  Lord  Halcraig's  person,  and  expressly  obliging 
himself  to  pay,  was  bound  to  the  assignee  by  his  own  contract ;  after 
which  the  assignee  needed  not  be  concerned,  whether  any  part  was 
paid  to  his  cedent  or  not ;  2do,  If  the  debtor  was  ignorant  of  the  back- 
bond, and  of  any  payments  made  to  the  cedent,  sibi  imputet;  it  is  more 
just,  the  original  creditor's  representatives  being  now  bankrupt,  that 
the  debtor,  whose  business  it  was  to  know,  should  suffer  by  his  igno- 
rance, than  the  assignee :  The  assignee,  in  taking  the  corroboration, 
took  all  reasonable  precaution  for  his  security;  and  he  had  thereby 
reason  to  rely  upon  his  assignation,  as  absolutely  good,  and  free  of 
all  exception. 

Anstuered  to  the  first;  It  is  in  vain  to  plead  upon  the  corroboration, 
which  in  no  view  can  import  a  more  express  acknowledgment  of  the 
assignee's  title,  than  the  actual  payment  that  was  made  to  him;  and. 
therefore,  since  a  condictio  indehiti  is  competent,  when  payment  is 
made  indehite,  errors  facti,  which  was  truly  the  case  here,  the  Duke 
not  having  known  of  the  back-bond,  it  will  not  be  the  less  competent 
that  a  corroboration  intervened :  And  the  reason  of  both  is  the  same, 
corroboration  and  payment  are  neither  of  them  absolute  unqualified 
acknowledgments  of  the  creditor's  title ;  they  go  upon  the  supposition, 
that  the  title  is  otherwise  well-founded;  if  which  prove  false,  what- 
ever is  built  thereupon  must  fall  to  the  ground.  To  the  second 
answered.  If  the  original  creditor's  representatives  are  bankrupt,  that 
naturally  falls  upon  the  assignee,  whose  faith  he  followed,  and  not  the 
debtor.  The  debtor  truly  made  twice  payment,  and  has  a  condictio 
indehiti,  well-founded  thereby  against  the  assignee;  which  action 
cannot  be  taken  from  him,  unless  the  assignee  will  qualify  some  fault, 
some  negligence  of  the  pursuer's,  which  yet  cannot  be  done,  by  reason 
that  the  back-bond  truly  had  fallen  aside  long  before  his  time ;  and 
he  was  no  way  negligent  as  to  that  matter.  And  if  they  ascribe  this 
effect  to  the  pursuer's  inculpable  ignorance,  then  it  must  follow  in 
general,  "That  a  debtor  can  never  obtain  a  condictio  indehiti,  if  the 
cedent  became  insolvent  any  time  after  the  payment,  of  which  repeti- 
tion is  sought ;"  a  position  that  is  apprehended  to  be  without  any  foun- 
dation in' law :  For,  as  inculpable  ignorance  is  never  reckoned  sufficient 
to  bear  out  an  action  of  damages  for  reparation ;  as  little  to  bear 
out  an  exception  of  damages,  in  order  to  take  away  an  action  that  is 
otherwise  competent. 

Replied  to  this  last;  It  is  sufficient  to  qualify  that  the  loss  hap- 
pened through  the  ignorance  and  error  of  this  pursuer :  For,  since  one 
of  them  miist  bear  the  loss,  it  is  more  equitable  that  it  fall  upon  the 
pursuer,  who  was  in  an  error,  than  the  defender  who  was  in  none; 
and  no  body  ought  to  be  prejudged  by  another's  errors. 


570  BULLLK  V.  HAitiasox.  [book  II. 

The  Lords  sustained  the  defence,  That  after  the  assignation  to  the 
Lord  Halcraig,  the  late  Duke  of  Argyle  did  corroborate  the  bond 
assigned  in  the  person  of  the  said  Lord  Halcraig,  relevant  to  assoilzie 
the  defender  from  any  repetition  or  extinction. 

Ful.  Dic.\\  1.  p.  187.    Rem.  Dec.  v.  1.  So.  39.  p.  78. 


BULLKH  V.  IIAIUUSOX. 

Kino's  Bench,  1777. 

l^Coivper,  565.] 

Upon  shewing  cause  why  a  new  trial  should  not  be  granted  in  this 
case,  Lord  ^Lvn.sfield  read  his  report  as  follows : 

This  was  an  action  for  money  had  and  received,  brought  I)y  the  plain- 
tiff against  the  defendant,  to  recover  back  a  sum  of  £'^]()0  paid  liim  as 
due  upon  a  policy  of  insurance,  as  agent  for  the  insured,  Messrs. 
Ludlow  and  Shaw,  resident  at  New  York.  This  sum  the  plaintiff  had 
paid,  thinking  the  loss  was  fair.  Notice  of  tiie  loss  was  given  l)y  the 
defendant  to  the  plaintiff  on  the  20th  of  April.  Part  of  the  money 
was  paid  at  that  time,  and  tiie  remainder  on  the  6th  of  May  follow- 
ing; on  which  day  the  defendant  passed  the  whole  sum  in  his  account 
with  Messrs.  Ludlow  and  Shaw,  and  gave  cri'dit  to  them  for  it  against 
a  sum  of  £.3000  in  which  they  stood  indcl)ted  to  liim.  On  the  ITth  of 
May,  notice  was  given  by  the  plaintiff  to  the  defendant  that  it  was 
a  foul  loss.  At  this  time,  nothing  liad  haj)])eiie(l  to  alter  the  situation 
of  tiie  defendant,  or  to  make  it  diirereiit  from  what  it  was  on  the 
20th  of  April.  He  had  accepted  no  fresh  l)ills,  advanced  no  sum  of 
money,  nor,  given  any  new  credit  to  his  principals;  but  affairs  between 
them  and  him  remained  precisely  in  the  same  situation  as  on  the  20th 
of  April.  The  qu<'stion  at  the  trial  was,  whether  this  action  could 
l)e  maintained  against  the  defendant,  as  ar/ent  of  the  insured;  which 
depended  on  this;  whether  the  defendant's  having  ])lacod  this  money 
to  the  account  of  his  ])rincipals,  in  the  manner  before  stated,  waB 
ecjuivalent  to  a  jjayment  of  it  over. 

In  general  the  principle  of  law  is  clear;  that  if  money  be  mispaid 
to  an  agent  expressly  for  the  use  of  his  j)rincipal,  and  the  agent  has 
I)aid  it  over,  he  is  not  liable  in  an  action  by  the  person  who  mispaid 
it:  because  it  is  just,  that  one  mn!i  should  not  l)e  a  loser  by  the  mis- 
take of  another;  and  the  person  who  made  the  mistake  is  not  witho\it 
redress,  but  has  his  remedy  over  against  flie  j)rin(ij)iil.  (>n  the  otJicr 
liand  it  is  just,  that  as  the  agent  ought  not  to  lose,  he  slinuld  not  be 
a  gainer  by  the  mistake.  And  tlu-refrtre,  if  after  the  j)ayment  so  made 
to  him,  and  before  be  has  j)aid  the  money  over  to  his  princi|)al.  the 
person  corrects  the  mistake;  the  agent  cannot  afterwards  pay  it  over  to 


CHAP.    II.]  BULLER  V.    HARRISON.  571 

his  principal,  without  making  iiinist'li"  liable  to  the  real  owner  for  the 
amount.  But  the  present  ease  turns  upon  this;  that  the  agent  was 
precisely  in  the  same  situation  at  the  time  the  mistake  was  discovered, 
as  before.  At  the  irial  I  inclined  to  think  the  plaintiff  ought  to  re- 
cover; but  did  not  direct  the  jury;  and  they  found  for  the  defendant. 
I  am  satisfied  I  mistook  in  leaving  it  open  to  the  jury :  For  it  is 
clearly  a  ques<"ion  of  law,  not  a  matter  of  fact:  And  in  conscience 
the  defendant  is  not  entitled  to  retain  the  money.  Therefore  I  should 
have  left  it  to  the  jury  in  this  manner;  if  you  are  satisfied  that  the 
money  was  paid  by  mistake,  and  the  defendant's  situation  not  altered 
by  any  new  circumstance  since,  but  that  every  thing  remained  in  the 
same  state  as  it  was  on  the  20th  of  April,  you  ought  to  find  for  the 
plaintiff. 

Mr.  Bearcroft  and  Mr.  Davenport  showed  cause. 

Mr.  Wallace  and  Mr.  Dunning  were  in  support  of  the  rule ;  but  Lord 
Mansfield  thought  the  case  so  clear,  that  his  lordship  stopped  Mr. 
Dunning,  as  being  unnecessary  to  give  himself  any  trouble. 

Lord  Mansfield.  I  am  very  glad  this  motion  has  been  made :  for 
I  desire  nothing  so  much,  as  that  all  questions  of  mercantile  law  should 
be  fully  settled  and  ascertained ;  and  it  is  of  much  more  consequence 
that  they  should  be  so,  than  which  way  the  decision  is.  The  jury  were 
embarrassed  on  the  question  whether  this  was  a  payment  over.  To 
many  purposes  it  would  be.  It  is  now  argued,  that  this  is  not  a  inere 
placing  to  account,  but  a  mailing  rest.  If  it  were,  it  would  not  vary 
the  case  a  straw.  I  verily  believe  the  jury  were  entangled  in  consider- 
ing it  as  a  payment  over.  There  is  no  imputation  upon  a  man  who 
trusts  to  a  misrepresentation  of  the  insured.  It  is  greatly  to  his 
honour;  but  it  makes  it  of  consequence  to  him  to  know,  how  far  his 
remedy  goes  if  he  is  imposed  upon.  The  whole  question  at  the  trial 
was,  wdiether  the  defendant,  who  was  an  agent,  had  paid  the  money . 
over.  Now,  the  law  is  clear,  that  if  an  agent  pay  over  money  which 
has  been  paid  to  him  by  mistake,  he  does  no  wrong ;  and  the  plaintiff 

must  call  on  the  principal.     And  in  the  case  of  Muilman  r.  , 

where  it  appeared  that  the  money  was  paid  over,  the  plaintiff  was  non- 
suited. But,  on  the  other  hand,  shall  a  man,  though  innocent,  gain 
by  a  mistake,  or  be  in  a  better  situation  than  if  the  mistake  had  not 
hajipened?  Certainly  not.  In  this  case,  there  was  no  new  credit, 
no  acceptance  of  new  bills,  no  fresh  goods  bought  or  money  advanced. 
In  short,  no  alteration  in  the  situation  which  the  defendant  and  his 
principals  stood  in  towards  each  other  on  the  20th  of  April.  What 
then  is  the  case?  The  defendant  has  trusted  Ludlow  and  Co.  and 
given  them  credit.  He  traffics  to  the  country  where  they  live,  and 
has  agents  there  who  know  how  to  get  the  money  back.  The  plain- 
tiff is  a  stranger  to  them  and  never  heard  of  their  names.  Is  it  con- 
scientious then,  that  the  defendant  should  keep  money  which  he  has 
got  by  their  misrepresentation,  and  should  say,  though  there  is  no 


572  '      SKYRING    V.    GKEENWOOD    A-    COX.  [BOOK    II. 

alteration  in  my  account  with  my  principal,  this  is  a  bit,  I  have  got 
the  money  and  I  will  keep  it  ?  If  there  had  been  any  new  credit  given, 
it  would  have  been  proper  to  have  left  it  to  the  jury  to  say,  whether  any 
prejudice  had  happened  to  the  defendant  by  means  of  this  payment: 
But  here  no  prejudice  at  all  is  proved,  and  none  is  to  be  inferred. 
Under  these  circumstances  I  think  (and  Mr.  Justice  Aston  with 
whom  I  have  talked  the  matter  over  is  of  the  same  opinion)  that  the 
defendant  has  no  defence  in  point  of  law,  and  in  point  of  equity  and 
conscience  he  ought  not  to  retain  the  money  in  question. 

Mr.  Justice  Willes  and  Mr.  Justice  Ashhurst  were  of  the  same 
opinion. 

Per.  cur.  Kule  for  a  new  trial  absolute. 


SKYRIXG,  ADMINISTRATOR   OF  G.   SKYRING  v.  GREEN- 
WOOD AND  COX. 

King's  Bench,  1825. 

[4  BarncwcU  &  Cresswell,  281.] 

Assumpsit  for  money  had  and  received  by  tlie  defendants  to  the  use 
of  G.  Skyring  in  his  life-time  and  to  the  use  of  the  plaintiff,  as  ad- 
ministratri.x  since  his  death.     Plea,  general  issue. 

At  the  trial  before  Abbott,  C.  J.,  it  appeared  that  the  defendants 
were  [)aymasters  of  the  Royal  Artillery  and  had  given  credit  in  ac- 
count to  an  ofliccr  in  that  corps,  tlie  late  Major  Skyring,  from  the 
1st  January,  1817,  to  the  5th  November,  1820,  for  certain  in- 
creased pay,  erroneously  supposed  to  be  granted  by  a  general  order 
of  the  27th  August,  1800,  to  an  officer  in  the  situation  of  the  late 
Major  Skyring,  and  a  statement  of  that  account  was  delivered  to  him 
in  1821.  ' 

In  December,  1810,  the  defendants  were  informed  by  the  board  of 
ordinance  that  tlie  inereased  pay  granted  by  the  order  of  ISOd  would 
not  be  allowed  to  olfieers  in  the  situation  of  Major  Skyring.  The  de- 
fendants, however,  did  not  eonimunicate  this  information  to  Major 
Skyring  until  1821,  and  subse(|uenlly  to  that  time,  they  continued  to 
receive  his  pay.* 

,\!«fU)TT,  C.  J.  It  is  not  necessary  to  decide  in  this  case,  whether 
the  defendants  by  reason  of  tlieir  character  of  paymasters  are  estop))ed, 
by  the  account  which  they  have  rendered,  from  saying  that  there  was 
n  mistake  in  it.  The  opinion  whieli  I  entertained  at  the  trial  was 
founded  on  a  particular  fact  in  this  case,  and  that  opinion  remains 

'ThJH  Htatcmcnt  in  taken  printipnlly  from  the  hcadnote  to  the  case. — Ed. 


CHAP.    II.  J  SKYRIXG    V.    GREENWOOD    &    COX.  573 

unaltered.  The  defendants,  as  paymasters,  received  sums  from  gov- 
ernment generally  on  account  of  the  corps,  and  an  order  having  been 
issued  for  an  increase  of  pay,  they  rendered  an  account  to  Major 
SJcyring  in  1831,  in  which  they  gave  him  credit  for  the  increased 
pay  to  which  they  supposed  him  to  be  then  entitled,  and  upon  that 
account  there  appeared  to  be  due  to  Major  Sl-ijring  a  balance  of  £116 
9s.  7d.  If  he  had  drawn  a  bill  upon  them  for  that  amount,  it 
probably  would  have  been  paid,  and  if  they  had  paid  the  money,  it  is 
quite  clear  that  they  could  not  afterwards  have  recovered  it  back, 
on  the  ground  that  according  to  the  true  construction  of  the  order 
it  was  not  due  to  Major  Sky  ring ;  and  if  the  defendants  could  not  have 
recovered  it  back,  they  ought  not  now  to  be  allowed  to  set  it  off.  The 
defendants  afterwards  continued  to  receive  further  sums  on  account 
of  Major  Shyririg,  and  the  money  so  subsequently  received  by  them 
must  be  considered  as  paid  off,  if  they  are  entitled  to  bring  back 
into  the  account  the  sums  which  they  had  given  him  credit  for,  in 
respect  of  the  increased  pay.  The  particular  fact  in  this  case  upon 
which  my  judgment  proceeds  is,  that  the  defendants  were  informed 
in  1816  that  the  Board  of  Ordnance  would  not  allow  these  pay- 
ments to  persons  in  the  situation  of  Major  Skyring,  but  they  never 
communicated  to  him  that  fact  until  1821,  having  in  the  mean  time 
given  him  credit  for  these  allowances.  I  think  it  was  their  duty  to 
communicate  to  the  deceased  'the  information  which  they  had  re- 
ceived from  the  Board  of  Ordnance;  but  they  forbore  to  do  so,  and 
they  suffered  him  to  suppose  during  all  the  intervening  time  that  he 
was  entitled  to  the  increased  allowances.  It  is  of  great  importance 
to  any  man,  and  certainly  not  less  to  military  men  than  others,  that 
they  should  not  be  led  to  suppose  that  their  annual  income  is  greater 
than  it  really  is.  Every  prudent  man  accommodates  his  mode  of 
living  to  what  he  supposes  to  be  his  income;  it  therefore  works  a 
great  prejudice  to  any  man,  if  after  having  credit  given  him  in  ac- 
count for  certain  sums,  and  having  been  allowed  to  draw  on  his 
agent  on  the  faith  that  those  sums  belonged  to  him,  he  may  be 
called  upon  to  pay  them  back.  Here  the  defendants  have  not  merely 
made  an  error  in  account,  but  they  have  been  guilty  of  a  breach  of 
duty,  by  not  communicating  to  ]\Iajor  Skyring  the  instruction  they 
received  from  the  Board  of  Ordnance  in  1816;  and  I  think,  therefore, 
that  justice  requires  that  they  shall  not  be  permitted  either  to  re- 
cover back  or  retain  by  way  of  set-off  the  money  which  they  had  once 
allowed  him  on  account. 

Bayley,  J.  This  may  be  a  case  of  hardship  upon  the  defendants, 
but  they  have  brought  it  upon  themselves.  This  is  an  action  for 
money  had  and  received.  If  the  defendants  are  entitled  to  set  off 
the  sum  they  claim,  the  action  is  not  maintainable.  From  the  year 
1816  to  1821  the  defendants  had  given  credit  for  certain  sums,  as  if 
Major  Skyring  was  entitled  to  them.       I  think  they  were  guilty  of 


574  SKYRIXG    C.    GREENWOOD    &    COX.  [bOOK    II. 

a  neglect  of  duty  in  not  communicating  to  him  the  information  thoy 
hail  received  from  the  Board  of  Ordnance  in  181G.  Suppose  that  the 
balance  of  the  account  delivered  in  18v'l  had  been  paid  to  Major 
Skyring,  and  that  no  subsequent  pay  had  been  received  for  his  use 
by  the  defendants,  and  tliat  they  had  brouglit  an  action  to  recover  back 
the  money  paid.  It  would  have  been  a  good  defence  to  tliat  action  to 
say  that  the  defendants  had  voluntarily  advanced  money  to  the  de- 
ceased when  he  asked  no  credit,  and  that  they  had  told  him  that 
they  had  received  the  money  for  his  use,  and  that  on  the  faith  of  their 
representation  he  had  drawn  it  out  of  their  hands  as  his  own  money, 
and  had  been  induced  to  spend  it  as  such  ;  and  if  they  could  not  recover 
the  money  back,  neither  ought  they  now  to  be  allowed  to  retain  other 
monies  belonging  to  the  deceased,  upon  the  ground  that  they  have 
paid  or  allowed  him  in  account  money  which  they  had  not  in  fact 
received  to  his  use,  but  which  they  suffered  him  to  consider  his  own 
for  a  long  jjcriod  of  time.  I  think  they  cannot  now  be  permitted  to 
say,  that  the  money  which  they  allowed  him  in  account  as  money 
received  by  them  to  his  use,  was  not  money  received  to  his  use.  The 
rule  for  a  new  trial  must  therefore  be  discharged. 

HoLHOYD,  J.  The  present  action  is  brought  for  money  had  and 
received  by  the  defendants  to  the  plaintilT's  use,  subse(iuently  to  the 
communication  made  by  the  Board  of  Ordnance  to  the  defendants, 
and  of  which  the  deceased  was  not  informed  till  1831.  The  plaintiff 
has  a  right  to  recover,  unless  the  defendants  have  a  debt  to  set  off. 
Xow  ^lajor  Skj/ring  had  a  riglit  to  expect  that  money  belonging  to  him 
would  Ijc  received  by  defendants  for  him,  and  that  all  payments 
made  by  them  were  on  account  of  monies  so  received  by  them.  Sup- 
po.se  that  Greenwood  and  Co.  had  paid  Major  Sh-i/ring  the  balance  of 
the  account  in  18'^1,  and  that  no  money  belonging  to  him  liad  come 
subsequently  to  their  iiands,  they  could  not  have  recoverecl  tliat  money 
back,  on  the  ground  that  they  had  |)aid  it  to  him  under  a  mistaken 
notion  that  he  was  entitled  to  it.  A  payment,  therefore,  made  under 
sucii  circumstances,  would  not  create  a  debt  between  the  defendants 
and  Major  Sh-i/ring.  Here,  it  is  true,  the  defendants  did  not  pay 
the  balance.  Bui  they  now  say,  that  .some  of  the  money  whicli  they 
paid  to  Major  Ski/riiig  was  not  paid  to  him,  on  account  of  monies 
received  for  him  by  them,  but  was  jiaid  by  them  under  the  mistaken 
notion  that  he  was  entitled  to  it,  and,  therefore,  that  such  ])ayment 
constituted  a  del)t  from  Major  Sl-iirimi  to  them,  which  they  are 
now  entitled  to  set  off ;  but  I  think,  fur  the  reasons  alre:idv  given,  it 
did  not  constitute  a  debt,  and  that  being  so,  tlie  j)laintiir  is  entitled 
to  recover. 

Hule  discharged. 


CHAP.    II.]  NEWIIALL   V.   TOMLINSON.  575 

NEWHALL  AND  ANOTHER  v.  TOMLINSON  AND  ANOTHER. 

Common  Pleas,  1871. 

[Law  Reports,  G  Common  Pleas,  405.] 

Action  for  money  had  and  received,  money  paid,  interest,  and 
money  found  due  upon  accounts  stated.    Plea,  never  indebted. 

The  cause  was  tried  before  Willes,  J.,  at  the  last  assizes  at  Liver- 
pool. The  facts  were  as  follows:  The  plaintiffs  and  the  defendants 
were  respectively  cotton-brokers  in  Liverpool.  In  April,  1870,  the 
plaintiffs  bought  of  the  defendants  74  bales  of  cotton  ex  Glen  Cora, 
each  acting  for  principals  whose  names  were  not  disclosed,  and,  ac- 
cording to  the  usage  of  the  cotton-market,  each  treating  the  others  as 
principals  in  the  transaction.  Weight-lists  of  the  cotton  were  in  the 
ordinary  course  delivered  to  each  party  from  the  warehouse-keeper 
at  Albert  Dock;  but  a  clerk  of  the  defendants  made  a  mistake  of 
100  cwt.  in  adding  up  the  figures,  and  the  consequence  was  that  when 
the  plaintiffs  paid  for  the  cotton  they  paid  the  defendants  too  much 
by  £509  15s.  The  mistake  was  not  discovered  until  the  14th  of  De- 
cember, when  the  plaintiffs  demanded  back  that  sum.  The  invoice 
for  the  cotton  (which  was  delivered  on  the  22d  of  April)  was  headed 
as  follows:  "Messrs.  Newall  &  Clayton,  bought  from  \Y.  D.  Tomlin- 
son  &  Co."  etc. ;  and  it  was  not  until  after  the  discovery  of  the  mistake 
that  the  plaintiffs  were  informed  (as  the  fact  was)  that  Messrs.  Dixon. 
&  Co.  were  the  defendant's  principals. 

In  the  meantime  the  defendants,  being  creditors  of  their  undis- 
closed principals  and  holding  the  goods  as  security,  credited  their 
principals  with  the  amount  received  from  plaintiffs. 

The  learned  judge,  before  whom  the  case  was  tried,  directed  the  jury 
to  find  for  the  plaintiffs,  damages  £509  15s.,  reserving  leave  to  the 
defendants  to  move  to  enter  a  verdict  for  them,  or  a  nonsuit,  if  the 
court  should  think  the  ruling  wrong. 

Quain,  Q.  C,  moved  accordingly. 

BoviLL,  C.  J.  The  defendants  in  the  first  instance  personally 
claimed  the  price  of  the  cotton  from  the  plaintiffs  as  upon  a  sale  to 
them  by  the  defendants,  each  being,  as  between  themselves,  personally 
bound  as  principals  in  the  transaction,  though  each  were  acting  for 
principals  whose  names  were  not  disclosed.  The  invoice  was  made 
out  as  upon  a  sale  from  the  defendants  to  the  plaintiffs,  and  claiming 
the  price  ns  ])eing  due  to  the  defendants  personally:  and  each  were 
liable  personally  to  the  others  for  the  due  performance  of  the  con- 
tract. The  defendants  were  entitled  to  sue  for  and  recover  the  price 
of  the  cotton  in  their  own  names,  and  to  apply  it  when  received  to 
their  own  use  and  benefit.     Tliev  had  made  large  advances  to  their 


576  NEWHALL    V.    TOMLINSON.  [BOOK   II. 

principals,  Messrs.  Dixon  li-  Co.,  upon  the  security  of  the  cotton,  and 
were  entitled  to  sell  it  to  recoup  themselves.  In  no  sense  could  they 
be  said  to  have  received  this  money  for  the  purpose  of  handing  it  over 
to  Messrs.  Dixon  »S:  Co. ;  nor  did  they  in  point  of  fact  hand  it  over 
to  tiu-m.  It  is  true  that  tlie  defendants  were  shown  to  have  made 
furtiier  advances  to  Messrs.  Dixon  &  Co.  suhsequently  to  tiie  receipt 
by  them  of  this  money.  That,  however,  could  not  make  it  money 
had  and  received  by  Messrs.  Dixon  &  Co.  to  the  use  of  the  plaintiffs, 
so  as  to  enable  them  to  sue  ^lessrs.  Dixon  &  Co.  for  it.  The  mistake 
originated  with  the  defendants  themselves,  and  they  alone  are  re- 
sponsible. The  cases  relied  on  are  clearly  distinguishable.  In  Shand 
V.  Grant,  15  C.  B.  N.  S.  324  the  defendant  received  the  money  as 
agent  of  the  shii)Owner,  and  for  the  puri)ose  of  handing  it  over  to  him. 
The  case  was  put  entirely  upon  the  ground  that  tlie  defendant  was  a 
mere  agent.  He  had  handed  over  the  money  to  his  principal,  and  the 
principal  was  the  proper  person  to  sue.  So,  in  Holland  v.  Russell, 
the  same  view  was  taken,  and  the  decision  proceeded  upon  the  ground 
that  the  defendant  was  a  mere  agent.  CocKnuR>J,  C.  J.,  in  delivering 
the  judgment  of  the  court  below,  after  stating  what  had  been  the 
contention  on  one  side  and  on  the  other,  says  ( 1  B.  &  S.  424,  at  p.  432 ; 
30  L.  J.  Q.  B.  308,  at  p.  312)  :  "We  are  of  opinion  that  the  ]daintiff 
fails  upon  the  facts.  Xot  only  is  it  clear  that  the  defendant  was 
acting  solely  as  agent,  but  (the  court  having  power  to  draw  inferences 
of  fact)  we  arc  of  opinion  that  the  plaintiff  was  aware  that  the  de- 
fendant was  aeting  as  agent  for  the  foreign  owners,  and  as  such  made 
to  him  the  payment  of  the  money  he  now  seeks  to  recover  back." 
And,  when  the  case  came  before  the  Court  of  Error,  the  same  view 
was  taken.  Eule,  C.  J.,  delivering  the  judgment  of  that  court,  says 
(\  B.  &  S.  14,  at  p.  15;  32  L.  J.  Q.  B.  207,  at  p.  208)  :  "The  de- 
fendant who  received  this  money  from  the  i)laintiff  received  it  as 
agent  for  a  foreign  principal.  The  plaintiff  knew  that,  and  paid  him 
in  that  capacity,  with  the  intention  that  he  should  pay  it  over  to 
that  principal,  and  he  did  so;  and  all  the  money  thus  received  has 
been  aeeounted  for  in  a  settlement  of  account  api)roved  by  the  foreign 
principal,  under  circumstances  which  clearly  amount  to  payment 
of  that  sum  to  him.  The  defendant  having  therefore  been  altogether 
an  agent  in  the  matter,  is  there  anything  which  takes  him  out  of  the 
ordinary  protection  to  which  an  agent  is  entitled  who  pays  money  to 
his  principal  lieforo  he  received  notice  not  to  |>ay  it,  and  before 
he  knew  that  there  was  no  legal  dutv  on  liini  to  do  so?  There  is 
nothing  in  this  case  to  deprive  the  defendant  of  the  right  of  an  ordi- 
nary agent  so  to  protect  himself."  Here  the  defendants  were  not  mere 
agents.  They  were  dealing  as  principals,  and  entitled  to  a|)ply  the 
proceeds  of  the  sale  of  the  cotton  to  their  own  use.  For  these  reasons 
I  am  of  (»j)inion  that  the  direction  of  the  learned  judge  was  riglit,  aiiil 
that  tjjere  siiould  i)e  no  rule. 


CHAl'.    11.  I  XKWUALL    V.    TOMLIXSON.  577 

Byles,  J.  I  entirely  agree  with  what  has  fallen  from  my  Lord 
upon  the  first  point.  The  defendants  did  not  receive  the  money  as 
mere  agents :  they  received  it  for  their  own  use  and  benefit.  In 
addition,  I  would  observe  that  the  defendants  here  are  seeking  to 
excuse  one  mistake  by  another.  They  paid  over  (or  accounted  for) 
the  money  to  tiieir  employers,  if  not  with  recollection,  yet  with  notice 
of  the  facts.  If  they  were  mere  agents,  they  were  bound  to  remember. 
On  both  grounds,  th(>n>forc.  I  think  the  verdict  was  right. 

Montague  S:Mrrii,  J.  1  am  of  the  same  opinion.  Upon  the  facts 
appearing,  the  defendants  were  not  mere  agents  to  receive  the  money 
for  Dixon  &  Co.,  and  to  hand  it  over  to  them.  They  received  it  on 
their  own  account,  and  had  a  right  so  to  receive  it  and  to  appropriate 
it  to  their  own  use.  They  were  not  mere  conduit-pipes:  they  were  in 
some  sense  principals,  and  had  a  right  to  approi)riate  the  money  in 
satisfaction  of  their  advances  to  Dixon  &  Co.,  and  they  did  so.  What 
is  said  by  Lord  JIaxsfield  in  Buller  v.  Harrison,  2  Cowp.  568,  seems 
to  me  to  be  very  much  in  point :  "The  law,"  he  says,  "is  clear,  that,  if 
an  agent  pay  over  money  whieli  has  been  paid  to  him  by  mistake,  he 
does  no  wrong ;  and  the  plaintiff  must  call  on  the  principal :  and  in 

the  ease  of  ]\Iuilman  v.  ,  where  it  appeared  that  the  money 

was  paid  over,  the  })laintiff  was  nonsuited.  But,  on  the  other  hand, 
shall  a  man,  though  innocent,  gain  by  a  mistake,  or  be  in  a  better 
situation  than  if  the  mistake  had  not  happened?  Certainly  not."  If 
the  argument  of  Mr.  Quain  were  to  prevail,  the  defendants  clearly 
would  be  in  a  better  position  than  if  the  mistake  had  not  happened. 
They  received  the  money  and  appropriated  it  towards  satisfaction 
of  their  own  debt.  I  think  the  defendants  were  not,  to  use  the 
words  of  Erle,  C.  J.,  in  Holland  v.  Russell,  4  B.  &  S.  16,  agents 
altogether.  As  between  themselves  and  the  plaintiffs,  they  were 
principals. 

Brett,  J.  I  am  of  the  same  opinion.  The  defendants  were  origi- 
nally liable  because  under  a  mistake  they  received  money  which  they 
were  not  entitled  to.  Tliey  cannot  get  rid  of  that  liability,  unless 
they  bring  themselves  within  the  rule  as  to  an  agent  who  has  re- 
ceived money  on  account  of  his  princii)al  and  has  paid  it  over  tcr  him. 
It  seems  to  me  that  they  have  failed  to  bring  themselves  within  that 
rule.  They  did  not  receive  this  money  for  their  principals.  They 
stood  with  regard  to  the  plaintiffs  as  original  contractors.  I  should  be 
sorry,  however,  to  decide  the  case  on  that  ground  alone.  The  money 
in  question  was  received  by  the  defendants,  not  only  as  between  tlie 
plaintiffs  and  themselves,  but  also  as  between  Dixon  &  Co.  and  them- 
selves, on  their  own  account,  and  not  on  account  of  Dixon  &  Co. 
Being  under  advances,  they  had  a  right  to  sell  the  cotton  and  receive 
the  proceeds  on  their  own  account.  They  cannot,  therefore,  say 
that  they  received  the  £500  15s.  in  question  to  the  use  of  their  princi- 
pals ;  and  consequently  they  do  not  bring  themselves  within  the  rule 


5T8  CLAKK    V.    ECKROYD.  [BOOK   II. 

relied  on.  I  will  only  add  that  I  found  my  judgment  entirely  upon 
that  view,  and  I  do  not  rely  on  the  ground  that  the  money  was  re- 
ceived by  the  defendants  through  a  mistake  of  their  own.^ 

Rule  refused. 


CLARK  V.  ECKROYD. 

Court  of  Appeal  of  Ontario,  1886 

[12  Ontario  Appeal  Reports,  425.] 

This  was  an  appeal  by  the  defendant  from  the  judgment  of  the 
Common  Pleas  Division,  reversing  the  judgment  of  Wilson,  C.  J., 
at  the  trial,  and  directing  judgment  to  be  entered  for  the  plaintiffs. 

The  plaintitfs  ordered  goods  from  the  defendant  in  Montreal  to 
be  shipped  to  them  in  Toronto,  and  three  several  consignments  were 
made,  one  of  which  having  been  addressed  to  "J.  H.  Clark  &  Co.," 
instead  of  "'H.  E.  ("lark  &  Co.,"  never  reached  the  plaintiffs,  but  was, 
after  remaining  eighteen  months  in  possession  of  the  carriers,  in  due 
course  sold  for  payment  of  the  charges  thereon.  The  plaintiffs  in 
ignorance  of  the  non-receipt  of  the  third  consignment  accepted  and 
paid  the  defendants'  draft  for  the  amount  of  the  invoices  of  the 
three  consignments.  Subsequently  they  discovered  their  error  and 
demanded  a  return  of  the  amount  paid — some  $335.92 — which  the 
defendant  refused.- 

Nevillr,  for  the  appellant. — It  may  safely  be  asserted  here  that 
but  for  the  culpable  negligence  of  the  plaintiffs  the  loss  which  has 
occurred  would  not  have  arisen.  The  plaintiffs  are  compelled  to  admit 
that  notice  of  the  consignment  of  the  goods  to  them  had  been  sent 
and  received,  yet  although  thereby  the  responsibility  was  cast  upon 
them  as  the  purcha.^Jers  and  consignees  of  the  goods  to  apply  to  the 
railway  company  they  entirely  neglected  such  simple  duty.  The 
plaintiffs  are  thus  shewn  to  have  been  guilty  of  gross  negligence,  which 

'The  prinripal  case  and  Durrnnt  r.  Ecclpsiustirnl  rominissionprs  (1880)  L. 
R.  fl  Q.  n.  D.  2.34  (tlio  fnrtH  of  which  nro  sullicicntly  ^'ivcri  in  ("lurk  r.  Kckroyd, 
poHl)  nro  >i«unlly  fitod  as  cstnlilishin;;  \ht-  dixtrinc  Ihat  chan;,"'  <>f  l)<)Hiti(in  on 
thp  part  fif  the  dofi-ndant  \»  no  l)ar  (ci  |)laintiir's  ri'c«)vpry.  They  rortainly  aro 
ri[)p()>ti-d  to  tho  earlier  eani-H  r)n  tho  mihje<'t.  such  as  ('«K-ks  r.  Mastcrinan  (  1S21)) 
1>  It.  &  ('.  !>0'2.  This  line  of  cases  is,  however,  distinfjuishahle  in  that  a  positive 
duty  is  ineiinihent  u|)on  the  [)hiintifT  to  notify  the  defendant  in  order  that  the 
latter  may  not  \itno  his  rijjhts  against  other  parties  to  the  instrument.  In  the 
nlmence  of  a  duty,  then,  mer<'  ne;;lij;ence  wouhl  seem  no  lonjrcr  to  bar  [ihiin- 
tiff't*  riyht  to  recovery,  even  aUhouph  defendant  is  prejudi(«'<l.  See  also  Stan- 
diHh  r.  HosM    (1H4!»)   .1  Kx.  .V27.  r,:\:i,  per  Taukk,  H— Ko. 

'Statement  of  the  case  is  taken  from  tlic  head  note,  and  tlic  argument  for 
the  respomlents   is  omitted. — Ki). 


CHAP.  II.]  CLARK  V.    ECKROYD.  579 

had  they  not  been  guilty  of  the  loss  could  not  have  occurred.  By 
the  conduct  of  the  plaintiffs  in  giving  their  acceptance  and  pa}Tnent 
of  the  draft  of  the  defendant  for  the  price  of  the  goods  so  sent  the 
defendant  was  misled  into  believing  that  all  was  right,  by  reason  of 
which  he  was  lulled  into  security,  in  consequence  of  which  he  has 
lost  all  right  to  call  on  tlie  carriers  for  the  price  of  the  goods.  Under 
these  circumstances,  although  all  was  done  under  a  mistake  of  fact, 
still,  as  defendant  cannot  be  restored  to  his  original  position,  he  has 
a  right  to  look  to  the  plaintiffs  for  indemnity.  Shand  v.  Grant, 
15  C.  B.  X.  S.  324;  Bullen  v.  Henderson,  2  Cowp.  365;  Freeman  v. 
Jeffries,  L.  E.  -i  Ex.  189 ;  Watson  v.  Moore,  33  L.  T.  121 ;  Cocks  v. 
Masterman,  9  B.  &  C.  905;  Addison  on  Contracts,  8  Ed.  1040; 
Campbell  on  Negligence,  G9. 

Geo.  Kerr,  for  the  respondents. 

January  12th,  1886.  Osler,  J.  A.  The  general  rule  is  fully  dis- 
cussed in  the  notes  to  Marriott  v,  Hampton,  2  Sm.  L.  Cas.  421,  and  is 
well  settled,  viz.,  that  a  person  may  recover  back  money  which  he  has 
paid  to  another  under  a  mistake,  as  to  the  existence  of  the  fact  on 
which  his  liability  to  pay  it  depended,  however  careless  he  may  have 
been  in  omitting  to  use  due  diligence  to  inquire  into  the  fact,  provided 
he  did  not  mean  to  waive  all  inquiry.  Kelly  v.  Solari,  9  M.  &  W.  54; 
Townsend  v.  Crowdy,  8  C.  B.  X.  S.  477. 

The  rule  is  usually  subject  to  the  further  qualification,  that  the 
person  Avho  received  the  money  must  not  through  the  neglect  or  mis- 
conduct of  the  person  who  paid  it  be  placed  in  a  worse  position  than 
if  he  had  not  paid  it. 

It  is  on  the  latter  ground  mainly  that  the  defendant  contests  his 
liability,  though  he  also  now  makes  the  point  that  the  present  action 
at  all  events  must  fail,  because  there  was  no  previous  demand  of  re- 
pajTuent. 

As  to  this  objection,  in  Kelly  v.  Solari,  Parke,  B.,  said:  "A 
demand  may  be  necessary  in  cases  in  which  the  party  receiving  the 
money  may  have  been  ignorant  of  the  mistake.'' 

And  in  Freeman  v.  Jefferies,  L.  R.  4  Ex.  189,  200,  Bramwell.  B. 
puts  it  thus : 

'Tf  the  plaintiff  were,  under  the  circumstances,  entitled  to  be  repaid 
the  sum  he  claims,  he  ought  to  have  given  notice  to  the  defendant,  of 
the  facts,  by  reason  of  which  he  was  so  entitled,  because  until  he  did  so 
there  could  be  no  duty  on  the  defendant  to  pay  it  over." 

In  the  present  case  I  think  it  quite  sufficiently  appears  from  the 
evidence  that  this  at  least  was  done. 

The  defendant  was  told  of  the  mistake  and  how  it  occurred,  and 
there  appears  to  have  been  an  attempt  to  compromise  the  matter. 
Had  it  been  intended  to  rely  on  this  objection  it  should  have  been 
expressly  taken  at  the  trial,  where  any  doubt  upon  the  subject  could 
have  been  at  once  cleared  up.    It  is  too  late  to  insist  upon  it  now. 


580  CLARK    V.    KlKHOYI).  fnOOK    II. 

As  to  the  principal  ground  of  delVnee  1  agree  with  the  decision  of 
the  Common  Pleas  Division.  That  the  money  was  paid  by  the  plain- 
tiffs under  a  bond  fide  mistake  of  fact  as  to  the  goods  having  been 
received  by  them,  and  that  such  mistake  was  not  discovi'red  until 
after  they  had  been  sold  by  the  railway  company  cannot  be  doubted. 
The  case  is  therefore  prima  facie  within  the  general  rule,  and  I  see 
great  ditliculty  in  holding  that  it  comes  within  the  exception  relied  on 
by  the  defendant. 

It  can  only  do  so  if  the  negligence,  of  which  the  plaintiffs  were 
undoubtedly  guilty,  was  in  respect  of  some  legal  duty  they  owed  the 
defendant. 

This  is  illustrated  by  the  case  of  Cocks  v.  Masterman,  0  B.  t^'  C. 
905,  where  the  plaintiffs,  who  were  bankers,  paid  a  bill  purporting  to 
be  accepted  by  their  customer,  and  having  discovered,  on  the  following 
day,  that  the  bill  was  forged,  gave  notice  of  the  fact  to  the  party  to 
whom  they  had  paid  it.  It  was  held  that  they  could  not  recover  back 
the  money  they  had  paid  on  the  bill,  because  the  holder  was  entitled 
to  know  on  the  day  the  bill  became  due  whether  it  was  honored  or 
dishonored,  and  that  the  defendants  by  their  negligence  in  paying  it 
without  satisfying  themselves  of  the  genuineness  of  the  acceptance, 
had  deprived  the  holder  of  his  right  or  privilege  of  taking  proceedings 
against  other  parties  to  the  bill  on  the  day  of  its  dishonor. 

To  the  same  effect  is  the  case  of  Smith  v.  fiercer,  G  Taunt.  80. 

The  (K'fendant  put  his  case  on  the  ground  of  estoppel,  urging  that 
the  plaintiffs  misled  him  into  the  belief  that  the  goods  had  been 
received,  and  thus  prevented  him  from  making  inquiries  which  would 
have  led  to  their  recovery,  l)ofore  the  railway  coiiijiany  could  have 
sold  them. 

In  Swan  v.  Xorth  British  Australasian  Co.,  '■!  11.  .^'  C.  175-182, 
Bl-VCKBURN,  J.,  speaking  of  the  rule  as  to  estoppel,  by  negligence,  and 
referring  to  the  judgment  of  Wildk,  B.,  in  the  court  below,  points  out 
that  "he  omits  to  (pialify  the  rule  he  had  stated,  l)y  saying  that  the 
neglect  must  be  in  the  transaction  itself,  and  be  the  pro.ximate  cause 
of  the  loading  the  party  into  the  mistake;  and  also  that  it  must  be 
the  neglect  of  some  duty  that  is  owing  to  the  person  led  into  that 
belief,  or  what  is  the  same  thing,  to  th(>  general  public,  of  whom  fhat 
person  is  one.  and  not  merely  the  neglect  of  what  would  be  prudent, 
in  respect  to  the  party  himself  or  even  of  some  duty,  owing  to  third 
persons,  ^v^th  whom  fhose  seeking  to  set  \\p  estopjx'l,  are  not  privy." 

Se<'  also  Dickson  v.  Heuter's  Telegrajdi  Co.,  3  C.  I*.  D.  p.  1,  per 
Bramwell,  L.  J.,  "Before  any  ])erson  can  complain  of  negligence, 
he  must  make  out  a  duty  to  take  care ;  and  that  duty  can  only  arise  in 
one  of  two  ways,  either  by  contract,  or  by  the  law  imposing  it." 

In  Durrant  v.  The  Keclesinstical  Commissioners,  (I  (.).  B.  D.  234, 
the  plaintifT  by  mistake  had  paid  the  defendants  who  were  own(>rs 
of  the  tithes  of  a  parish,  tithe  rent  chargetl  in  respect  of  lands  which 


CHAP.  II.]  CLARK  V.    KCKUOYD.  581 

were  not  in  his  occupation,  lie  did  not  discover  his  mistake  until 
the  two  years  limited  by  law  for  the  recovery  of  a  tithe  rent  charge 
had  expired,  and  the  defendants  had  lost  tlieir  remedy  for  the  arrears 
against  the  lands  actually  chargeable.  It  was  argued  that  the  plaintiff 
ought  to  have  known  the  facts,  and  that  his  laches  had  altered  the 
position  of  the  defendants;  but  it  was  held  that  there  was  no  duty 
cast  on  the  plaintiff  in  relation  to  the  defendants,  which  made  his 
delay  in  discovering  the  mistake,  laches  on  his  part  and  that  he  was 
entitled  to  recover. 

What  legal  duty  then  did  the  plaintiffs  owe  the  defendant  in  the 
present  case?  If,  as  I  think,  there  was  none  at  the  time  the  draft 
was  accepted  and  the  money  paid,  none  would  arise  afterwards,  short 
of  the  time  when  the  mistake  was  actually  discovered. 

The  defendant  believed  he  had  sent  the  goods,  and  said  so :  the 
plaintiffs  believed  they  had  received  them  and,  in  effect,  said  so  too; 
for  the  defendant's  case  may  be  put  as  high  as  that.  Both  were  mis- 
taken, but  the  plaintiffs  in  saying  so  were  neither  inviting  the  defend- 
ant to  act,  nor  to  refrain  from  taking  action  about  the  goods,  for 
nothing  was  then  known  to  them,  which  made  it  their  duty  at  their 
peril,  to  be  accurate;  in  other  words  which  made  it  their  duty  to  take 
care,  more  than  if  the  goods  had  never  left  the  d'^fendant's  warehouse, 
and  the  subsequent  loss  had  occurred  by  reason  of  their  being  l)urnt, 
or  stolen,  or  injured  there  from  any  cause  before  the  discovery  of 
the  mistake.  That  it  was  not  discovered  sooner  may  have  been  negli? 
gence,  but  it  was  negligence  in  relation  to  the  plaintiffs'  own  l)usiness, 
negligence  in  relation  to  something  which  would  have  been  prudent, 
in  respect  to  the  plaintiffs  themselves,  but  not  of  any  duty  they  owed 
to  the  defendant. 

The  origin,  and  real  cause  of  the  loss  was  the  defendant's  own 
neglect  in  mis-sending  the  goods.  On  the  decisions  referred  to  the 
judgment  is  right,  and  the  appeal  should  be  dismissed. 

BuRToy.  J.  A.  I  agree  in  affirming  the  judgment  upon  the  question 
of  estoppel,  and  in  addition  to  the  cases  referred  to  by  my  Brother 
OsLER  would  refer  to  tlie  case  in  this  Court  of  the  Agricultural 
Saving  Association  v.  Federal  Bank,  6  A.  R.  200,  where  the  same 
question  was  fully  considered. 

Hagarty,  C.  J.  0.,  and  Patterson.  J.  A.,  concurred. 

Appeal  dismissed,  with   costs} 

'The  autliorities  on  this  subject  arc  in  oonfusion,  and  abound  in  dicta  more 
or  less  relevant  and  more  or  less  soimd. 

For  cases  on  this  subject  in  the  Federal  and  State  Courts,  see  15  Am.  & 
Eng.  Encyc.  of  Law  (2d  ed.)   1106,  1107  and  notes. 

For  the  Scotch  law  on  this  question,  see  3  Green's  Encyc.  of  Scots  Law 
(article  Condictin  indehifi)    170. 

For  the  Continental  law  on  the  subject  of  payment  by  mistake  due  to 
plaintitFs  negligence,  when  a  recovery  would  prejudice  the  defendant's  legal 


582  KELLY  V.    SOLAKI.  [BOOK  II. 

{d)  The  Effect  of  Plaintijf's  Negligence. 
KKTJ.Y  r.  SOLAKI. 

EXCUEQUEK,    1841. 

[9  Meeson  tf-  WeLsby,  54.]      » 

Assumpsit  for  money  paid,  money  had  and  received,  and  on  an 
account  stated.  Plea,  noi}  assumpsit.  At  the  trial  before  Lord 
Abin'geh,  C.  B.,  at  the  London  sittings  after  Trinity  term,  it  ajjpeared 
that  this  was  an  action  !)rought  by  the  plaintiff,  as  one  of  the  directors 
of  the  Argus  Life  Assurance  Company,  to  recover  from  the  defend- 
ant, Madame  Solari,  the  sum  of  £li)7  10s.  alleged  to  have  been  paid 
to  her  by  the  company  under  a  mistake  of  fact,  under  the  following 
circumstances. 

Mr.  Angelo  Solari,  the  late  husband  of  the  defendant,  in  the  year 
183i)  effected  a  policy  on  his  life  with  the  Argus  Assurance  Company 
for  £20().  He  died  on  the  18th  of  October,  1840,  leaving  the  defend- 
ant his  executrix,  not  having  (by  mistake)  paid  the  quarterly  premium 
on  the  policy,  which  became  due  on  the  3d  of  September  preceding. 
In  November,  the  actuary  of  the  office  informed  two  of  the  directors, 
Vr.  Bates  and  Mr.  Clift.  that  tho  policy  had  lapsed  by  reason  of  the 
non-payment  of  the  premium,  and  ^Ir.  Clift  thereupon  wrote  on  the 
policy,  in  pencil,  the  word  "lapsed."  On  the  nth  of  F'el)ruary,  1841, 
the  defendant  proved  her  husband's  will;  and  on  the  13th.  applied 
at  the  Argus  office  for  the  payment  of  the  sum  of  €1000,  secured  upon 

ripht'*.  <*of»:  Fn-ndi  f'ndc  f'ivil  (Diilloz)  .\rts.  l.'^Tfi.  l.'?77:  I>au(livT.acantinoiio 
&  Hardo's  Trnitt'  dc  Droit  Civil:  l^ps  01)Ii;,'ati()ns.  vol.  iii.,  part  2.  pp.  lOOIMO?"  ; 
Italian  Civil  Code  ( P'reneh  translation  of  Pnulhoninic)  Art.  114(5;  Spanish 
Civil  Code  (edition  of  Falcon)  Art.  1800.  Tlie  cited  editions  of  the  Italian  and 
Spaninh  Codes  are  annotated  with  references  to  the  various  lioMin^s  of  the 
Continental  and  S|)anish-Anierican  countries,  includinp  Louisiana  (Civil  Code, 
Arts.  2271I-2200) .  These  provisions,  dilFcrinp  somewhat  in  formal  expression, 
are  all  imscd  upon  Articles  l.'lTn.  I.'ITT  «>f  the  Krem-h  Code.  The  Spanish  text  is 
fuller  and  may  sctve  as  a  mo<lcI :  ".\  person  shall  he  exemptc<l  from  the  ohli- 
ffal'um  of  restitution,  who,  hclicviuK  in  pood  faith  that  the  payment  was  made 
on  the  oceount  of  a  lepitimnte  and  subsisting  credit,  destroys  the  title  or  has 
allowed  the  action  to  he  preH<'rihed,  f>r  has  abandoned  the  |)ledf;e.  or  cancelh'd 
the  warranties  of  his  ripht.  A  person  who  has  unduly  made  a  i>ayment  can 
only  a<ldrcss  himself  to  the  true  debtor  or  to  tlie  sureties  with  regard  to  whom 
the  action  may  yet  lie  enforeed."  (The  translatirm  is  taki-n  from  Walton's  Civil 
Low    in   Sjiain   an<l    S[)ani'<b-.\merica.) 

For  the  firrivitions  of  the  Honmn  l;iw  and  iIh-  |)resent  law  on  thi-*  subject 
in  ffermany.  we*-  2  \Vind««'heid's  PandeUtenre<'ht  (8th  ed.)  9  42(1.  and  the 
vorious  notes  thereto,  anri  references  to  the  Hdrperlichcs  (Jcsetzljucli,  j  814. — Kd. 


CHAP,  II.]  KELLY  V.    SOLARI.  583 

the  policy  in  question  and  two  others,  ilessrs.  Bates  and  Clift,  and 
a  third  director,  accordingly  drew  a  cheque  for  £!i87  10s.,  which  they 
handed  to  the  defendant's  agent,  the  discount  being  deducted  in  con- 
sideration of  the  payment  being  made  three  months  earlier  than  by 
the  rules  of  the  oflice  it  was  payable.  Messrs.  Bates  and  Clift  stated 
in  evidence,  that  they  had,  at  the  time  of  so  paying  the  money,  entirely 
forgotten  that  the  policy  in  question  had  lap.sed.  Under  these  circum- 
stances, the  Lord  Chief  Baron  expressed  his  opinion, that  if  the  direc- 
tors had  had  knowledge,  or  the  means  of  knowledge,  of  the  policy  having 
lapsed,  the  plaintiff  could  not  recover,  and  that  their  afterwards  for- 
getting it  would  make  no  difference;  and  he  accordingly  directed  a 
nonsuit,  reserving  leave  to  the  plaintiff  to  move  to  enter  a  verdict  for 
him  for  the  amount  claimed. 

Lord  Abixoer,  C.  B.  I  think  the  defendant  ought  to  have  had  the 
opportunity  of  taking  the  opinion  of  the  jury  on  the  question  whether 
in  reality  the  directors  had  a  knowledge  of  the  facts,  and  therefore 
that  there  should  be  a  new  trial,  and  not  a  verdict  for  the  plaintiff; 
although  I  am  now  prepared  to  say  that  I  laid  down  the  rule  too 
broadly  at  the  trial,  as  to  the  effect  of  their  having  had  means  of 
knowledge.  That  is  a  very  vague  expression,  and  it  is  difficult  to 
say  with  precision  what  it  amounts  to;  for  example,  it  may  be  that 
the  party  may  have  the  means  of  knowledge  on  a  particular  subject, 
only  bv  sending  to  and  ol)taining  information  from  a  correspondent 
abroad.  In  the  case  of  Bilbie  v.  Lumley,  the  argument  as  to  the  party 
having  means  of  knowledge  was  used  by  counsel,  and  adopted  by  some 
of  the  judges ;  but  that  was  a  peculiar  case,  and  there  can  be  no  ques- 
tion that  if  the  point  had  been  left  to  the  jury,  they  would  have  found 
that  the  plaintiff  had  actual  knowledge.  The  safest  rule  however  is, 
that  if  the  party  makes  the  payment  with  full  knowledge  of  the  facts, 
although  under  ignorance  of  the  law,  there  being  no  fraud  on  the 
other  side,  he  cannot  recover  it  back  again.  There  may  also  be  cases 
in  which,  although  he  might  by  investigation  learn  the  state  of  facts 
more  accurately,  he  declines  to  do  so,  and  chooses  to  pay  the  money 
notwithstanding ;  in  that  case  there  can  be  no  doubt  that  he  is  equally 
bound.  Then  there  is  a  third  case,  and  the  most  difficult  one. — where 
the  party  had  once  a  full  knowledge  of  the  facts,  but  has  since  for- 
gotten them.  I  certainly  laid  down  the  rule  too  widely  to  the  jury, 
when  I  told  them  that  if  the  directors  once  knew  the  facts  they  must 
be  taken  still  to  know  them,  and  could  not  recover  by  saying  that  they 
had  since  forgotten  them.  I  think  the  knowledge  of  the  facts  which 
disentitles  the  party  from  recovering,  must  mean  a  knowledge  existing 
in  the  mind  at  the  time  of  payment.  I  have  little  doulit  in  this  case 
that  the  directors  had  forgotten  the  fact,  otherwise  I  do  not  believe 
thev  would  have  brought  the  action;  but  as  :N[r.  Piatt  certainly  has  a 
rigiit  to  have  that  question  submitted  to  the  jury,  there  must  be  a 
new  trial. 


584  KELLY  t'.  SOLARI.  [bOOK  IL 

Parke.  B.  I  ontirely  agree  in  tlic  opinion  just  pronounced  1)V  my 
Lord  Chief  Bahox,  that  there  ought  to  he  a  new  trial.  1  think  that 
where  money  is>  paid  to  another  under  the  intluence  of  a  mistake, 
that  is,  upon  the  supposition  that  a  specific  fact  is  true,  which  would 
entitle  the  other  to  the  money,  but  which  fact  is  untrue,  and  the 
money  would  not  have  l)een  paid  if  it  had  been  known  to  the  payer 
that  the  fact  was  untrue,  an  action  will  lie  to  recover  it  back,  and  it 
is  against  conscience  to  retain  it ;  though  a  demand  may  be  necessary 
in  those  cases  in  which  the  party  receiving  may  have  been  ignorant 
of  the  mistake.  The  position  that  a  ])erson  so  paying  is  precluded 
from  recovering  by  laches,  in  not  availing  himself  of  the  means  of 
knowledge  in  his  power,  seems,  from  the  eases  cited,  to  have  been 
founded  on  the  dictum  of  Mr.  Justice  Bayley,  in  the  case  of  Milnes  v. 
Duncan ;  and  with  all  respect  to  that  authority,  1  do  not  think  it  can 
be  sustained  in  point  of  law.  If,  indeed,  the  money  is  intentionally 
paid,  without  reference  to  the  truth  or  falsehood  of  the  fact,  the 
plaintiff  meaning  to  waive  all  inquiry  into  it,  and  that  the  person 
receiving  .shall  have  the  money  at  all  events,  whether  the  fact  be  tiue 
or  false,  the  latter  is  certainly  entitled  to  retain  it;  but  if  it  is  paid 
under  the  impression  of  the  truth  of  a  fact  which  is  untrue,  it  may, 
generally  speaking,  be  recovered  l)ack,  however  careless  the  party 
paying  may  have  been,  in  omitting  to  use  due  diligence  to  inquire  into 
the  fact.  In  such  a  case  the  receiver  was  not  entitled  to  it,  nor 
intended  to  have  it. 

(JruNKV.  B.,  concurnMl. 

RoLFE,  B.  I  am  of  the  same  opinion.  With  respect  to  the  argu- 
ment, that  money  cannot  be  recovered  back  e.\cei)t  where  it  is  uncon- 
scientious to  retain  it,  it  seems  to  me,  that  wherever  it  is  paid  under 
a  mistake  of  fact,  and  the  party  would  not  have  paid  it  if  the  fact 
had  been  known  to  him,  it  cannot  be  otherwise  than  unconscientious 
to  retain  it.  Rut  I  agree  that  Mr.  Plntl  has  a  right  to  go  to  the  jury 
again,  upon  two  grounds:  first,  that  the  jury  may  possibly  find  that  the 
directors  had  not  in  truth  forgotten  the  fact;  and  secondly,  they  may 
also  come  to  the  conclusion,  that  they  had  dt'termined  that  they  would 
not  expo.se  the  ollice  to  unpopularity,  and  would  thcrd'ore  pay  the 
money  at  all  events;  in  which  case  1  quite  agree  that  they  could  not 
recover  it  l)ack.* 

Rule  nhsohilf  for  a  iinr  trial. 

«In  TownHond  v.  Crowdy  (IH(JO)  S  C.  11.  \.  S.  477.  plaint  itr  lM.u;,'lit  cmt  ii 
partnfT  for  a  prifc,  Mul)j«'ct  to  a  (Ifdiu-tion,  in  cane  piidits  fell  olT.  Il«'  i)aid 
without  deduction,  not  having  diwovcicd.  as  if  careful  he  ini^lit  have  done, 
that  profits  fill  ofT.  On  action  f«>r  nmncy  fnu\  and  rifcivod  to  the  pIuiiitilTH 
use,  it  wuh  licld  that  plaintifT's  nc>;lif;rncc  was  no  bar  to  Iuh  recovory. 

"It  BPCmH,  from  a  lon^  wripH  of  jascH,  from  Kelly  r.  Solari,  9  M.  &  W.  .'>4. 
down  to  DailH  v.  F.loyd,  12  Q.  B.  5.11.  that,  whoro  a  party  pays  money  under  a 
miHtakc  of  fact,  he  ih  entitled  to  recover  it  back,  althouj-li  be  may  at  the  time 


CHAP.    II. J  I'ERllY    V.    NEWCASTLE    INSURANCE    CO.  585 

PERRY  V.  NEWCASTLi^  MUTUAL  FIRE  INSURANCE  CO. 

Queen's  Bench  of  Upper  Canaua,  1853. 

[8  Upper  Canada  Q.  B.  3G3.] 

Assumpsit — common  counts — money  paid — money  received,  and 
on  account  stated. 

Plea :  Non-assumpsit. 

The  plaint iifs  insured  their  mill  with  the  defendants  for  three 
years,  from  the  1st  of  September,  1848,  to  the  1st  of  September, 
1851 — paying  at  the  time  £12  10s.,  and  5s.  for  the  policy.  In  1849 
they  paid  further  £50  on  account  of  their  premium  note  for  £250 
which  they  had  given  according  to  the  statute.  They  did  not  pay 
this  £50  to  the  defendants  in  cash,  but  by  a  note  given  by  one  of  the 
plaintiffs  for  discount  and  indorsed  by  a  third  party,  and  which  was 
taken  up  when  due.  These  payments  were  made  to  .satisfy  assessments 
made  by  the  company  on  the  premium  note,  according  to  the  act, 
and  were  made  in  July  and  October,  1849. 

The  policy,  dated  the  1st  of  September,  1848,  was  given  by  the 
clerk  of  the  company  to  one  of  the  plaintiffs;  it  had  the  seal  of  the 
company  to  it,  and  the  signature  of  their  secretary,  but  not  of  the 
president — which  omission  of  the  president's  signature  the  secretary 
swore  at  the  trial  was  accidental — and  he  stated  that  when  he  gave 
the  policy  either  to  one  of  the  plaintiffs  or  to  some  one  for  them,  he 
believed  that  he  requested  that  they  would  call  on  the  president  to  get 
it  signed  by  him. 

The  defendant's  counsel,  at  the  trial,  contended  that  the  policy  be- 

of  the  payment  have  had  means  of  knowledj^e  of  which  he  nas  neglected  to 
avail  himself." — Erle,  C.  J. 

"No  doubt,  at  one  time  the  rule  tliat  money  paid  under  a  mistake  of  fact 
might  be  recovered  back,  was  subject  to  the  limitation  that  it  must  be  shown 
that  the  party  seeking  to  recover  it  back  had  been  guilty  of  no  laches.  But. 
since  the  case  of  Kelly  r.  Solari,  9  M.  &  W.  54,  it  has  been  established  that  it 
is  not  enough  tliat  the  party  had  the  means  of  learning  the  truth  if  he  had 
chosen  to  make  inquiry.  The  only  limitation  now  is.  that  he  must  not  waive 
all  inquiry.  Upon  the  facts  of  this  case,  I  think  the  i>laintitr  is  entitled  to 
recover." — Williams,  J. 

"This  is  the  simple  ease  of  one  paying  another  money  which  both  at  the 
time  suppose  to  be  due,  but  which  afterwards  turns  out.  in  consequence  of  a 
mistake  of  fact  on  the  part  of  the  payer,  not  to  have  been  really  due.  In  such 
a  case  the  law  clearly  is  that  the  money  may  be  recovered  back.  The  only  dis- 
tinction is  between  error  or  mistake  of  law.  for  which  the  payer  is  responsible, 
and  error  or  mistake  of  fact,  for  which  he  is  not." — WiLl.ES.  J. 

For  the  doctrine  of  the  principal  case,  compare  X.  Y.  Life  Ins.  Co.  v. 
Statham  (1870)   93  U.  S.  24,  and  Keener's  Quasi-Contract.  52. — Ed. 


586  PERRY    V.    NEWCASTLE    INSURANCE    CO.  [BOOK   II. 

ing  under  the  seal  of  the  company  and  countersigned  by  their  secre- 
tary, was  binding  upon  tliem;  and  that  at  any  rate  the  phiintiffs 
could  not  recover  back  money  voluntarily  paid  on  a  contract  entered 
into  by  them,  having  the  policy  in  their  own  possession,  and  being 
therefore,  as  must  be  presumed,  aware  of  any  defect  apparent  on  the 
face  of  it. 

Verdict  for  the  plaintiff,  £67  18s.^ 

Vankoughnct  obtained  a  rule  to  enter  a  nonsuit  on  points  re- 
served at  the  trial ;  or  for  a  new  trial  on  the  law  and  evidence,  and 
for  misdirection. 

KoBiNsoN,  C.  J.  delivered  the  judgment  of  the  court.  , 

We  are  of  opinion  that  the  rule  nisi  for  nonsuit  in  this  case  should 
be  made  al)solute,  but  not  from  any  doubt  whether  the  policy  was 
or  was  not  binding  upon  the  company,  being  without  the  president's 
signature;  for  we  think  it  clear  that  it  was  not  in  itself  binding  on 
account  of  that  omission. 

The  19th  clause  of  the  Gtli  Wni.  IV.  ch.  18,  when  it  provides  "that 
any  policy  signed  by  the  president  and  countersigned  by  the  secretary 
hut  not  otherwise,  shall  be  deemed  valid  and  binding  on  the  company," 
makes  the  signatures  of  both  those  officers  necessary  to  its  validity — 
and  it  cannot  be  denied  that  the  plaintiffs  have  been  holding  a  j)olicy 
since  the  1st  of  SeptcmlxT,  1848,  which  tliey  could  not  directly  en- 
force by  an  action  at  law ;  it  does  not  therefore  follow,  however,  that 
they  can  su))port  this  action  to  recover  back  money  which  they  have 
paid  on  account  of  the  i)reniium  note  given  under  the  statute.  If 
they  were  resisting  the  payment  of  any  further  sum  on  account  of 
the  note  until  a  binding  policy  had  issued,  or  because  that  which  had 
been  issued  was  not  binding — that  would  raise  a  different  question,  as 
was  e.xplaiiu'd  in  the  case  of  Bell  r.  Gardiner,  4  ^I.  &  dr.  11,  which 
was  cited  l)y  the  plaintiffs'  counsel  in  the  argument,  but  which  in  its 
general  bearing  is  'unfavorable  to  the  plaintiffs'  recovery  under  the 
general  circumstances  of  this  case. 

The  general  principle  is  clear,  that  when  a  j)ers()n  has  paid  a  sum 
of  money  to  another,  with  a  full  knowledge  of  facts,  lie  cannot  sue 
for  it  back  again  on  the  ground  that  he  paid  it  in  ignorance  of  the 
law,  resulting  from  these  facts.  As  was  stated  l)y  the  court  in  Bell  v. 
(Jardiner,  the  inference  seems  almost  irresistible  that  the  plaintiffs, 
having  such  means  of  knowledge  as  they  bad  in  this  case,  must  have 
been  aware  of  the  fact  that  the  jmlicy  wliic  h  they  themselves  held 
had  not  the  president's  signature.  .\nd  besides,  it  was  sworn  by  the 
person  who  gave  the  |)olicy  to  one  of  the  j)laintifTs,  that  he  believed 
he  mentioned  to  him  that  h<'  must  call  and  obtain  the  jiresident's 
signature.  Still  we  must  admit  it  to  be  j)ossible  that  this  witness  may 
have  been  mistaken  in  supposing  that  he  stated  this,  and  possibly  also 

'Ttic  wtiitciiM-nt  of  Die  <'nHo  in  nnicli  sliortpiied. — En. 


CHAP.    II.]  PERRY    V.    XEWCASTLK    IXSURANCE    CO.  587 

that  the  plaintiffs  might  have  been  able  in  some  way  to  prove  to  the 
satisfaction  of  a  jury  that  they  in  fact  were  not  aware  that  the  presi- 
dent's signature  was  wanting.  And  if  the  jury  had  been  so  con- 
vinced, and  had  found  the  fact,  then  as  respects  that  point  in  the 
case,  it  would  have  stood  on  similar  ground  with  the  case  of  Bell  v. 
Gardiner.  But  here  we  have  the  fact  that  the  plaintiffs  had  the  most 
ample  means  of  knowledge  of  the  defect  when  they  paid  the  money, 
and  no  ground  is  furnished  for  questioning  that  they  did  in  fact  know 
it.  We  have  not  therefore  any  foundation  to  rest  upon  for  the  distinc- 
tion which  the  court  took  in  Bell  v.  Gardiner ;  and  there  is  besides  this 
other  difference  on  which  the  Court  then  laid  great  stress,  that  it 
was  an  action  in  which  the  defendant  was  setting  up  want  of  con- 
sideration or  failure  of  consideration  as  a  defence  against  a  demand — 
not  a  case  in  which  a  party  having  made  a  payment  with  full  means  of 
knowledge  in  his  power,  was  suing  to  recover  back  again  the  money 
which  he  had  so  paid. 

The  case  of  Hentig  et  al.  v.  Staniforth,  5  M.  &  Sel.  122,  cited  by 
the  plaintiffs'  counsel  in  this  case,  does  not  apply,  because  there,  when 
the  plaintiffs  paid  the  money,  it  was  expected  that  a  license  for  the 
voyage  would  be  obtained  in  time  to  make  the  voyage  legal;  and  by 
accident  the  license  was  delayed  so  long  that  it  became  inoperative, 
for  the  ship  had  sailed  without  it.  The  voyage  was  consequently 
illegal,  and  no  action  could  have  been  sustained  on  the  policy.  The 
assured  was  allowed  to  recover  back  his  premium,  but  that  was  be- 
cause there  was  a  failure  of  consideration  by  reason .  of  something 
happening  after  the  payment,  and  not  known  at  the  time  of  the  pay- 
ment, which  wholly  frustrated  the  object. 

The  ease  of  Oom  et  al.  v.  Bruce,  12  Ea.  R.  225,  was  a  ease  stand- 
ing on  the  same  ground,  and  equally  inapplicable  to  the  circumstances 
of  the  case  now  before  us.  The  case  of  Lucas  r.  Worswick,  1  Moo.  & 
Rob.  293,  and  of  Kelly  v.  Solari,  9  M.  &  M.  54,  are  more  to  our 
present  purpose;  for  they  are  both  cases  of  exceptions  to  the  general 
principle  that  money  paid  with  knowledge  of  the  facts,  or  with  such 
means  of  knowledge  as  would  raise  prima  facie  a  presumption  of 
knowledge,  cannot  be  recovered  ])ack. 

The  justice  of  the  decision  in  Lucas  v.  Worswick  is  clear ;  and  one 
is  glad  to  find  that  the  court  felt  itself  at  liberty  to  draw  the  dis- 
tinction which  was  drawn  in  that  case — namely,  that  a  party  may 
recover  back  money  which  it  is  clear  he  must  have  paid  in  forgetf ill- 
ness of  certain  facts  which  had  without  doubt  been  known  to  him. 

The  plaintiff  there  having  a  claim  made  upon  him  for  work  and 
labor  for  £143,  contended  that  he  was  only  liable  for  £97:  but  as  the 
defendant  pressed  for  some  money  on  account,  he  paid  him  £20  10s., 
leaving  the  question  as  to  the  full  amount  of  the  claim  open  for 
future  discussion.  The  defendant  afterwards  agreed  to  give  up  the 
disputed  part  of  his  account  and  accept  the  £97  in  full,  and  the  plain- 


588  PERHY    V.    NEWCASTLE    INSLKANC  E    CO.  [  IU)OK    11. 

tiff  then  paid  him  £!»? — not  at  the  momtmt  thinking  of  the  £20  10-;. 
which  he  liad  already  paid  on  account.  He  soon  became  sensible  of 
his  mistake,  and  demanded  back  the  £'-^0  lOs.  which  he  had  thus  paid 
twice  over;  but  the  defendant  insisted  on  retaining  it.  It  would  be  a 
reproach  to  our  law  if  under  such  circumstances  the  payment  could  not 
be  recovered  back,  though  undoubtedly  it  was  money  j)aid  with  a 
knowledge  of  the  fact,  but  amounting  to  the  same  as  want  of  knowl- 
edge of  it  at  the  moment.  The  knowledge  was  not  present  at  the 
time,  and  no  man  couhl  doubt  that  the  payment  must  have  been  for- 
gotten;  for  the  plaintiff  could  never  have  intended  to  pay  the  same 
sum  a  second  time.  It  was  therefore  a  case  for  an  e.xcejjtion  mani- 
festly proper  to  be  made  to  the  general  principle  that  money  i)aid 
with  knowledge  of  the  facts  cannot  be  recovered  liack.  It  was  most 
unconscientious  in  the  defendant  to  desire  to  retain  the  money.  Here 
it  seems  as  unconscientious  in  the  plaintiifs  to  dt'sire  to  get  the 
premium  back — at  least  till  they  had  gone  to  the  defendants  and 
ascertained  that  they  were  inclined  to  evade  the  obligation  by  with- 
holding the  president's  signature  from  the  policy.  That  should  have 
been  first  put  to  the  test. 

It  is  not  easy  for  us  to  determine  whether  the  ])laintitrs  when  they 
paid  the  £50  (for  as  to  the  £12  10s.  that  payment  by  the  very  ])ro- 
visions  of  the  charter  was  required  to  be  made  Ijefore  the  policy  was 
perfected)  were  under  the  imi)ression  that  the  policy  would  be  bind- 
ing if  it  had  only  the  corporate  seal ;  or  whether  they  paid  the  money 
in  reliance  that  the  company  would  raise  no  difliculty  about  it,  as 
they  had  been  long  insured  with  them,  and  the  same  risk  had  l)een 
again  clearly  accepted  and  agreed  to  be  continued;  or  whether  the 
plaintiir  meant  to  have  the  defect  supplied,  and  merely  omitted  it 
from  that  disposition  to  procra.stinate  which  often  occasions  a  thing 
to  be  neglected  from  the  feeling  that  it  can  l)e  done  at  any  time.  In 
either  case  the  ]»laintill's  could  not  demand  the  money  back;  and  the 
only  rpiestion  that  would  remain  with  us  would  be  whether,  as  in  tli' 
case  of  Kelly  v.  Solari,  1)  .M.  ik  W.  51.  there  should  not  be  a  new  trial, 
in  order  that  the  jurv  might  find  e.\|)ressly  whether  llie  money  was 
paid  with  a  knowledge  of  the  facts  and  in  cons('(|uence  of  the  ))laintifTs" 
waiving  the  defect  in  the  |)olicy  under  any  such  im|iressions  as  1 
have  mentioned,  or  whether  they  paid  it  in  actual  ignorance  that  the 
president's  signature  was  wanting,  or  forgetting  that  circumstance 
when  they  made  the  payment,  sujtposing  them  to  have  known  it 
before. 

As  to  the  latter  point,  we  can  see  no  grouml  on  which  it  could 
properly  have  been  left  to  the  jury  to  have  assumed  the  case  to  be  so, 
in  the  absence  of  any  evidence.  In  F.ucas  r.  Worswick.  1  Moo.  X-  Hobb. 
29'{,  no  one  conld  have  imagined  otherwise  than  that  the  plaintiir 
inu.Mt  have  forgotten  the  previous  j)ayment  when  he  p;ii(l  the  whole 
money  a  second  time. 


CIlAl'.    II.]  I'HRKY    V.    NEWCASTLE    IXSUKANCE    CO.  589 

But  thc!  plaint  ill's'  counsel  adiiiitttMl  fairly  enough  on  the  argument 
of  tills  rule,  that  there  was  really  no  pretence  for  ordering  a  new  trial, 
since  no  new  light  eoulil  he  thrown  on  the  case  hy  any  evidence  in  the 
power  of  the  ])arties  to  give.  And,  as  it  stands  upon  thc  evidence,  we 
think  the  plaintiffs  must  fail:  for — first,  as  they  had  the  policy  all 
the  time  in  their  own  possession,  it  ought  not  to  he  assumed  without 
any  evidence  whatever  leading  to  such  a  conclusion,  that  they  did  not 
know  in  what  condition  the  policy  was  in  regard  to  its  execution. 
Then,  secondly,  if  they  had  even  noticed  the  defect  for  the  first  time 
after  they  had  paid  the  £50,  they  should  at  least  have  gone  to  the 
defendants  and  given  them  an  opportunity  to  repair  the  defect  before 
they  made  it  the  ground  of  demanding  back  their  money.  And  thirdly 
— which  indeed  is  conclusive  of  itself  against  this  action — the  plain- 
tiffs cannot  be  said  to  have  paid  their  money  for  nothing,  since  the 
company  were  in  fact  bound  to  execute  a  policy,  having  accepted  the 
risk  and  received  the  money.  Their  own  by-law,  as  they  rightly  insisted 
in  answer  to  this  demand,  made  them  clearly  liable.  It  is  usual  with 
insurance  comijanies  to  accept  the  premium  and  give  a  temporary 
receipt,  which  binds  them  in  case  of  a  loss  happening  before  the 
policy  is  drawn  out ;  and  it  is  necessary  that  this  should  be  the  case, 
especially  in  cases  like  the  present  of  renewed  or  continued  insurance, 
for  otherwise  a  person  might  be  ruined  by  a  fire  occurring  within 
the  short  time  that  must  elapse  before  the  formal  instrument  can  be 
prepared  and  executed. 

1  do  not  consider  that  the  company  could  in  this  case  have  escaped 
from  their  liability,  after  what  has  taken  place ;  for  if  they  were  dis- 
posed to  be  dishonest,  they  could  surely  be  compelled  to  execute  a 
valid  policy  of  the  proper  date,  and  their  by-law  would  estop  them 
from  objecting  that  it  was  not  in  fact  executed  before  the  loss. 

In  eft'ect,  therefore,  the  plaintiffs  have  been  all  the  time  insured, 
as  they  probably  have  considered  themselves  to  be,  notwithstanding 
the  accidental  omission  of  the  ])resi dent's  name,  which  they  have  had 
no  reason,  as  it  appears,  for  apprehending  would  not  be  made  right 
upon  their  request  at  any  time. 

Per  Cur. — Rule  absolute  for  entering  nonsuit.* 

'See  further  of  thi.s  question  of  paj'ment  liy  mistake,  with  means  of  knowl- 
edge at  hand:  Guild  v.  Baldridge  (1852)  2  Swan,  295;  Columbus  Ins.  Co.  v. 
Walsh  (185.3)  18  Mo.  229;  National  Life  Ins.  Co.  v.  Jones  (1873)  1  Thompson 
&  Cook.  466  (affirmed  in  59  N.  Y.  649)  ;  Windbiel  v.  Carroll  (1878)  16  Hun. 
101:  Fnnnl)ers  r.  Risk  (1878)  2  III.  App.  499;  West  v.  Houston  (1844) 
4  Harrington,  170,  as  note  to  Mowatt  r  Wright,  ante,  406. 

In  :\Ierchants  National  Bank  r.  National  Eagle  Bank  (1869)  101  Mass. 
281,  285,  Ck.\y,  .1.,  speaking  for  the  court,  said:  "It  is  well  settled  by  recent 
(liH-i-^ions  tliat  money  paid  to  the  holder  of  a  check  or  draft  drawn  without 
fvuids  may  he  recovered  back,  if  paid  by  the  drawee  under  a  mistake  of  fact. 
And  though  the  rule  was  originally  subject  to  the  limitation  that  it  must  be 


590  STANLEY    RULE   AND    LEVEL    CO.    V.    BAILEY.  [BOOK   II. 

THE  STANLEY  KULE  AND  LEVEL  COMPANY  v.   BAILEY. 

Supreme  Court  of  Errors  of  Connecticut,  1878. 

[45  Connecticut  Reports,  464.] 

Assumpsit,  to  recover  back  money  claimed  to  have  been  paid  under 
a  mistake  of  facts;  brought  to  the  Court  of  Common  Pleas  of  Hart- 
ford County.  The  facts  were  found  by  a  committee,  and  on  the  facts 
the  court  (Mc^L\nus,  J.)  rendered  judgment  for  the  plaintiffs.  The 
defendant  brought  the  record  before  this  court  by  a  motion  in  error. 
The  case  is  sufficiently  stated  in  the  opinion. 

Park,  C.  J.  We  think  the  finding  of  the  court  below,  that  the 
money  sought  to  be  recovered  in  this  suit'  was  paid  by  the  plaintiffs 
to  the  defendant  through  misapprehension  of  the  facts  with  regard 
to  their  obligation  to  pay  it,  is  decisive  of  the  case.  It  is  conceded 
that  the  plaintiffs  are  entitled  to  recover  a  part  of  the  amount,  an<l 
we  think  it  is  equally  clear  they  ought  to  recover  the  whole.  That 
part  of  it  which  is  in  dispute  was  paid  to  the  defendant  as  a  royalty 
for  the  privilege  of  manufacturing  and  selling  certain  articles,  under 
certain  patents,  of  which  the  defendant  previous  to  this  time  was  the 
owner.  The  money  was  paid  according  to  the  terms  of  a  certain  con- 
tract l)etween  the  parties,  wherein  the  d('fon(hint,  for  the  consideration 
of  a  certain  royalty  to  be  paid  on  all  the  articles  covered  l)y  the  patents 
which  should  be  manufactured  and  sold  by  the  plaintiffs,  granted 
them  the  privilege  of  manufacturing  and  selling  them  during  the  con- 
tinuance of  the  patents  and  any  extension  of  them.  The  plaintiffs 
manufactured  and  sold  the  articles,  and  paid  the  royalty  according 
to  the  terms  of  the  contract.  In  the  meantime  some  of  the  defendant's 
])atents  expired  and  were  not  extended,  but  the  plaintiffs  being 
ignorant  of  the  fact  continued  to  pay  the  royalty  as  they  had  done 
before,  and  paid  the  sum  which  they  now  seek  to  recover  on  patents 
which  had  thus  expired.  The  defendant  knew  that  the  patents  had 
expired  and  had  not  been  renewed  at  the  time  he  received  the  money: 
but  believing  that  he  bad  the  right  to  receive  it  under  the  contract,  did 
not  state  the  fact  to  the  plaintiffs. 

It  further  appears  that  the  plaintiffs  paid  the  money  believing  that 
the  patents  were  in  force,  and  that  they  would  not  have  paid  it  had 

Bhown  tliiit  tlif  party  sookin^'  to  recover  Imck  had  licon  piilty  <if  no  ncpliponce, 
it  is  now  held  that  thr-  phiintifT  in  hucIi  cuho  is  not  jiri-cludcd  from  rocovory 
by  InchcH  in  not  aviiilinj^  hitnsrdf  of  ilio  nioan.H  of  knowledp-  in  liis  power.  It 
is  othorwiBe  if  the  money  in  intentif)nally  paid  without  reference  to  the  truth 
or  fnWhood  of  the  fnct,  and  with  the  intention  that  the  payee,  nhall  have  the 
money  nt  all  eventH.  Appleton  Hank.  4  fJray.  r)20;  Kelly  r.  Solari,  J)  M.  &  VV. 
64;  TownHin<I  r.  f'rowdy.  8  C.  11.  N.  S.  477." 

Sec  also  LawTcncc  v.  American  National  Hank  ( 1873)  .'54  N.  Y.  432. — Ed. 


CHAP.    II.]  EARL   OF    MAR    V.    EARL    OF    CALLANDER.  591 

they  known  the  facts.  But  it  is  said  that  they  had  the  means  of 
knowledge,  and  that  this  is  equivalent  to  knowledge  itself.  There  may 
be  such  full  and  complete  means  of  knowledge  as  to  be  equivalent  to 
knowledge  itself,  but  we  think  this  is  not  such  a  case.  The  defendant 
owned  the  patents.  He  was  in  the  employ  of  the  plaintiffs.  The 
patents  were  on  a  large  number  of  articles;  and  some  of  them  w^ere 
covered  by  two  or  more  patents  of  different  dates.  The  case  was  a 
complicated  one,  and  required  thorough  examination  to  determine  the 
exact  fact.  It  would  naturally  be  expected  that  the  defendant  would 
keep  himself  informed  on  the  matter,  and  being  in  the  employment  of 
the  plaintiff's  would  inform  them  when  the  patents  expired.  This 
would  reasonably  be  expected  by  the  plaintiffs  where  they  had  no  reason 
to  suspect  dishonesty  in  the  defendant ;  and  we  think  they  had  a  right 
to  rely  on  what  would  ordinarily  be  expected  under  the  circumstances.^ 

It  is  further  claimed  that,  whatever  might  otherwise  be  the  right 
of  the  plaintiffs  to  repayment,  they  have  lost  the  right,  inasmuch  as 
they  made  a  voluntary  payment  of  the  royalty  on  articles  covered  by 
the  remaining  patents,  after  they  had  become  apprised  of  the  fact  that 
they  had  paid  the  royalty  on  patents  which  had  expired.  This  claim 
is  made  upon  the  idea  that  the  last  payment  made  the  first  payment 
voluntary,  although  it  was  not  so  originally.  But  a  payment  is  either 
voluntary  or  involuntary  at  the  time  it  is  made,  and  nothing  can  occur 
afterwards  to  alter  its  character  in  this  respect.  As  well  might  it  be 
claimed,  if  A.  sues  B.  upon  a  note,  and  B.  has  a  claim  against  A.  for 
work  done  at  his  request,  that  unless  B.  sets  off  his  claim  against  A.'s 
demand  he  thereby  acknowledges  that  he  has  no  claim,  and  cannot 
afterwards  recover  it.     This  claim  is  clearly  without  foundation. 

There  is  no  error  in  the  judgment  complained  of. 

In  this  opinion  the  other  judges  concurred. 


(e)  Defense  of  a  Purchase  for  Value. 

EARL  OF  MAE  v.   EAEL  OF  CALLANDER. 

Court  of  Sessions  of  Scotland,  1673. 

[2  Stair's  Decisions,  866.-] 

The  Earl  of  Mar  pursues  the  Earl  of  Callander  to  repeit  a  part  of 
the  Sum  of  6000  merks  payed  by  him,  and  his  Chamberlains  to 
Callander,  more  than  was  due,  in  so  far  as  he  having  been  due  to  the 
Laird   of   Glorrcf   by  Bond   6000   merks   of   Principal,   one   of   his 

'A  portion  of  the  opinion  rolatin?  to  the  construction  of  the  contract  ha?i 
been  omitted. — En. 

^Likewise  reported  in  Morison's  Dictionary  of  Decisions.  ^O^T. — Ed. 


592  EARL    OF    MAI!    C.    KAltL    OF    CALLANDER.  [BOOK    H. 

Chanil)orlains  had  payed  looo  iiK-rks  Uicrcof  to  Ulorct.  and  a  suhse- 
(jiu'iit  Chamberlain,  not  knowin*,'  of  the  former,  payed  to  CiiUnnder, 
as  Assigney  b}'  Gloret,  the  whole  Sum.  I'rineipall,  and  Annual,  so  that 
the  1000  merks  was  twice  i)ayed,  and  was  indebile  solutuin  to  Cal- 
lander.  it  having  l)een  payed  bef<ire  t<>  his  cedent.  It  was  answered 
for  CaUundvr.  That  Glurct  being  Debitor  to  him  in  the  like  Sum, 
he  had  for  his  satisfaction,  assigned  him  this  Bond,  so  that  he  having 
received  no  more  from  Mar.  than  what  was  due  to  him  by  Gloret,  he 
was  not  obliged  to  repeit  what  lie  had  received,  in  solution  of  a  just 
Debt,  for  repefitlo  nulla  eat  ah  eo.  (^ui  suuni  recipit,  tamctst  ah  alio 
quam  vcro  dehitorc  aolutum  est.  L.  44.  ff.  de  Condictione  indebiti, 
and  L.  2.  Cod.  eodem  solutiex  delegatione  repetitio  nulJaest  contra 
delegaium,  sed  contra  deleijantem,  licet  sit  ex  errore  solutum.  so  that 
Callandcrs  Assignation  from  Gloret  to  Marx  Bond,  in  satisfaction 
of  a  Debt  due  by  Gloret.  is  a  Delegation  of  Mar.  Glorets  Debitor,  in 
place  of  Gloret  himself,  and  therefore  there  can  be  no  repetition  of 
what  was  payed  by  Mar  through  error  against  Callander,  though  it 
may  justly  l)e  against  Gloret.  seing  Callander  has  received  nothing 
by  the  payment  of  his  true  Debt,  which  is  according  to  our  ordinar 
custom,  that  if  any  make  payment  of  another  mans  Debt,  upon  that 
Debitors  Precept,  he  can  never  Kepeit  it  upon  jiretence,  tliat  it  was 
indibite  .^ohitiim.  and  that  he  payed  by  error,  when  he  was  not  due, 
and  an  Assignation  being  but  a  Procuratorie  in  rem  siiatn  is  in  the 
like  case.  It  was  answered.  That  as  the  Earl  of  Mar  might  have 
excluded  Callander,  before  he  got  payment,  as  to  this  1000  merk  payed 
to  his  cedent  before  his  Assignation,  so  having  jiayed.  what  was  not 
due,  he  may  justly  repeit  it.  as  it  was  found  in  the  Case  of  Sir  James 
Ramsay  against  Robertson,  the  10  .Inn.  Mu'.^.  where  The  Lords 
decerned  liobrrtson,  to  reprit  what  he  as  Executor  Creditor  had  re- 
covered from  Ramsay,  upon  findinr/  of  a  discharge  of  the  Debt;  and 
here  the  pavment  was  not  made  by  tlie  Earl,  or  by  his  Warrand.  but  by 
the  error  of  his  Chamberlains.  It  was  He|)lyed.  That  what  was  payed 
by  Ramsay  to  Robertson  was  not  voluntar,  but  by  a  Transaction  ujion 
a  depending  Process,  but  voluntar  payment,  of  what  was  due  to  a 
Creditor,  though  the  Payer  was  not  Debitor,  can  never  be  repeited, 
whether  it  were  payed  l)y  the  l]arl,  <•••  by  his  Chamberlains,  or  any 
other. 

The  Lords  found  Callander  obiigi'd  to  repeit.  if  be  had  a('»|uire(l 
the  Assignation,  for  payment  of  a  Sum  whereby  In-  was  in  the  same 
Ca.'M'  as  his  cedent,  and  was  not  a  Cnnlitor  as  to  what  was  payed  iMiforc 
hJH  Assignation,  but  found  it  relevant.  Tliat  /n's-  Assir/nation  was  in 
salisfartinn  of  a  Debt  due  to  him  by  Gloret  before  the  A ssiy nation-, 
equivalent  to  the  Sum  assiqned ;  So  that  he  got  no  more  from  Marr, 
or  his  Chand)crlains,  but  what  was  due  to  him  by  Gloret. 


CHAP.    II.]  CATHCART    V.    MOODIE.  593 

CATHCART  v.  MOODIE. 

Court  of  Sessions  of  Scotland,  1804. 

[Morison's  Dictionary  of  Decisions,  App.  Heir  and  Exr.  2.] 

Mr.  William  Andersone  having  been  the  man  of  business  for 
Lord  Rockville's  family,  was  considerably  indebted  to  them  at  the 
time  of  his  death  (Dec.  1796),  when  he  nominated  Mr.  Stuart  Moodie, 
advocate,  to  be  his  executor. 

The  account  due  to  the  Countess  Dowager  of  Dumfries,  Lord  Rock- 
ville's widow,  amounted  to  £1054  15s.  and  as  there  was  then  supposed 
to  be  much  more  than  a  sufficiency  of  funds  for  the  discharge  of  his 
whole  debts,  payments  were  made  to  the  amount  of  £986  5s.  8d.  so 
as  nearly  to  extinguish  this  debt. 

It  having  turned  out,  however,  that  Andersone's  funds  were  in- 
adequate to  answer  the  demands  upon  him,  Moodie  raised  a  summons 
of  multiplepoinding  (4th  June  1798),  in  which  it  was  agitated,  whether 
Lady  Dumfries  should  rank  upon  the  debt  as  at  Mr.  Andersone's 
death,  or  as  then  outstanding;  that  is,  whether  the  payments  were  to 
be  held  as  dividends  out  of  the  interest  belonging  to  Lady  Dumfries 
in  the  funds,  or  if  she  should  now  rank  for  the  difference  between 
the  sum  originally  due,  and  the  payments  made  in  extinction  of  it. 

Mr.  Moodie  contended,  That  the  whole  creditors,  after  their  debtor's 
decease,  are  constituted  into  an  aggregate  body,  for  whose  behoof  the 
executor  is  trustee :  That  therefore  he  has  no  right  to  apply  the  funds 
to  the  payment  of  one  creditor  more  than  to  another:  Although  he  can- 
not make  any  such  selection,  still  it  is  held  that  he  may  pay  prima 
venienti;  but  this  cannot  be  to  any  one  making  a  private  extrajudicial 
demand,  but  can  only  be  to  the  person  who  first  obtains  a  decree; 
Ersk.  B.  3  T.  9.  §  43.  This  Avas  not  the  case  here.  The  payment, 
therefore;  was  unwarrantable  and  there  must  be  room  for  a  condictio 
indebiti.  For  although  it  may  be  true,  that  there  was  a  debt  truly 
due  at  first,  there  was  none  due  by  the  the  executor,  in  so  far  as  the 
funds  turn  out  insufficient.  The  payment  was  made  by  mistake,  and 
therefore  not  protected  I)y  the  bona  fides  of  the  creditors.  Carrick  v. 
Carse,  5th  August  1778,  No.  11,  p.  2931. 

Lady  Dumfries  having  assigned  her  interest  to  Robert  Cathcart, 
writer  to  the  Signet,  as  her  trustee,  in  his  name  argued :  A  creditor 
having  obtained  payment  from  an  executor, where  no  diligence  has  been 
used  for  six  months  after  the  deatli  of  the  debtor,  is  not  liable  in  any 
claim  for  repetition,  though  an  insufficiency  of  the  the  funds  may  after- 
ward be  discovered.  A  debt  which  is  not  disputed  may  be  paid  in  this 
way  without  any  decree.  The  claim  of  repetition  cannot  be  supported 
upon  the  idea  of  a  condictio  indebiti,  which  implies  a  want  of  title 


594  ilERCIIAXTS'  IXS.  CO.   r.  ABBOTT  AND  OTHERS.       [BOOK   11. 

in  the  receiver,  or  ignorance  of  some  pica  in  point  of  fact  or  law 
on  the  part  of  the  payer.  Neither  of  these  can  be  alleged  here.  The 
debtor  niigiit  have  obtained  decree  against  the  executory  funds  for  the 
debt,  and,  when  paid,  no  claim  in  the  way  of  condictio  would  be  com- 
petent. Robertson  v.  Strachan.  2\nh  July  1700,  Xo.  35,  p.  8087: 
Ersk.  B.  2  T.  9,  §  23;  Lesser  Institute. 

The  Lords  found,  "That  the  payments  made  to  Lady  Dumfries  are 
to  be  imputed  in  extinction  of  the  original  debt  due  to  her,  and  that  she 
is  not  bound  to  repeat  any  part  thereof." 


MERCHANTS'  INSURANCE  CO:\rPANY  OF  PROVIDENCE  v. 
ABBOTT  AND  OTHERS. 

Supreme  Judicial  Court  of  Massachusetts,  1881. 

[131  Massachusetts  Reports,  397.] 

Gray,  C.  J.  These  actions  are  in  the  nature  of  assumpsit  for  money 
had  and  received,  with  special  counts  alleging  that  the  plaintiffs  were 
induced  to  pay  the  money  l)y  fraud  and  mistake.  The  five  cases  were 
tried  together,  but  are  not  exactly  alike. 

In  the  first  action,  which  is  brought  by  the  Merchants'  Insurance 
Company  of  Providence,  R.  I.,  against  Charles  W.  Abl)ott  and  the 
members  of  the  firm  of  Denny,  Rice  &  Co.,  the  material  facts  are  shown 
by  the  report  of  the  presiding  justice  and  the  sjiocial  findings  of  the 
jury  to  be  as  follows: — 

On  March  17,  1870,  a  woollen  mill  was  destroyed  by  fire,  upon  the 
contents  of  whicli  Abbott  held  a  policy  of  insurance  from  the  plaintiffs 
in  the  sum  of  $2,500,  payable  in  sixty  days  after  satisfactory  proofs 
and  adjustment  of  loss,  and  providing  that  any  fraud  or  false  swear- 
ing in  the  proofs  of  lo.ss  should  avoid  the  policy.  Soon  after  the  fire. 
Al»t)ott  nuide  and  delivered  to  the  plaintifTs  proofs  of  loss,  and  they, 
after  a  rea.sonai)le  investigation,  which  disdo.sed  no  grounds  for  a 
refu.sal  to  pay,  and  in  ignorance  of  any  fraud  on  Abbott's  part, 
adjusted  the  amount  of  the  loss  in  accordance  with  sjuch  ))roofs. 

Denny,  Rice  &  Co.  offered  evidence  of  the  following  facts:  At  the 
time  of  the  fin;  ,\bbott  was  indebted  to  them  in  tlie  sum  of  aboiii 
$4,000,  In  thr  bitter  part  of  .Xpril.  1S7(;,  Abbott  paid  them  aboui 
$1,500  in  cash,  and,  as  security  for  the  payment  of  the  rest  of  hi- 
debt,  executed  an  instrument  in  writing  under  seal,  l)y  which,  after 
reciting  the  issuing  of  the  policy,  and  that  a  claim  for  hiss  had  arisen 
under  it,  he  assigned  to  them  all  his  "claims  upon  said  insurance  com- 
pany for  loss  under  said  policy."  and  authorized  them  to  demand  and 
Hue  for  the  same  in  his  name,  if  necessary,  r.nd  the  proceeds  to  enjoy 
to  their  own  use,  and  .generally  to  do  all  and  every  act  in  and  about 


CHAP.    II.]       merchants'  ins.  CO.  V.  ABBOTT  AND  OTHERS.  595 

the  premises  which  he  might  do  if  this  assignment  had  not  been  made. 

In  June,  187G,  at  the  expiration  of  the  sixty  days  allowed  by  the 
terms  of  the  policy,  the  plaintiffs,  in  good  faith,  and  not  knowing  of 
any  fraud  on  Abbott's  part,  paid  to  Denny,  Eice  &  Co.  the  amount 
of  the  loss  as  adjusted,  and  took  a  receipt  signed  by  them  in  this  form : 
"Boston,  May  25,  IHTG.  deceived  of  the  ^lerchants'  Insurance  Com- 
pany of  Providence  $2,478.80  in  full  satisfaction  and  discharge  of  all 
claim  for  loss  and  damage  under  this  policy  by  fire  March  17,  1876, 
and  this  policy  is  hcrel)y  cancelled  and  surrendered."  The  sum  so  paid 
exactly  extinguished  tlie  debt  of  Al)bott  to  Denny,  Rice  &  Co.,  and 
they  never  paid  any  part  of  it  to  him. 

The  mill  and  its  contents,  as  the  jury  found,  were  burned  with  the 
knowledge  and  at  the  instigation  of  Abbott,  and  his  proofs  of  loss  were 
false  and  fraudulent.  The  plaintiffs  did  not  learn  that  they  had  been 
defrauded  until  ilay,  1877,  and  then  at  once  placed  the  case  in  the 
hands  of  legal  counsel  for  investigation,  and  for  prosecution,  if  investi- 
gation should  warrant  it;  and  on  January  16,  1878,  brought  this 
action.  The  other  defendants  had  no  knowledge  of  any  fraud,  nor 
was  any  demand  for  the  money  made  upon  them  before  this  action 
was  commenced. 

On  June  5,  1877,  Abbott  filed  a  petition  in  bankruptcy,  and  on 
October  3,  1877,  obtained  a  certificate  of  discharge,  and  no  dividend 
was  paid  out  of  his  estate. 

The  justice  presiding  at  the  trial  ruled  that  Alibott's  certificate  of 
discharge  was  no  bar  to  this  action ;  and,  holding  that  the  facts  offered 
to  be  proved  by  the  other  defendants  constituted  no  defence,  directed 
a  general  verdict  for  the  iDlaintiffs,  and  reported  the  case  for  such  dis- 
position and  judgment  as  the  full  court  shoidd  determine. 

There  can  be  no  douI)t  of  the  liability  of  Abbott  in  this  action.  If 
the  money  had  been  paid  by  the  plaintiffs  to  him,  it  could  l)e  recovered 
back  as  money  paid  under  the  influence  of  a  mistake  between  them 
and  him  as  to  the  existence  of  a  state  of  facts  that  would  entitle  him 
to  the  monev.^  Kelly  v.  Solari,  9  M.  &-  W.  5-1 ;  Townsend  v.  Crowdy, 
8  C.  B.  X.S.  477;' Pearson  v.  Lord,  6  Mass.  81:  Stuart  v.  Sears, 
119  Mass.  143 ;  Welch  v.  Goodwin,  123  Mass.  71 :  2  Phil.  Ins.  §§  1816, 
1817.  Although  Ahlmtt  has  not  in  fact  received  the  money,  the  pay- 
ment of  the  money  by  the  plaintiffs  at  his  request  in  discharge  of  his 
debt  to  the  other  defendants  is  equivalent  to  the  receipt  by  Abbott  of 
so  much  money,  and  is  sufficient  to  enable  the  plaintiffs  to  maintain 
the  action  against  him  upon  the  special  count,  if  not  upon  the  general 

*Accor(lintrly.  in  two  othor  actions,  hidii^'lit  l>y  tlio  Mamifaoturors"  Fire  and 
!M;\iine  Insurance  Co.  and  the  American  Insurance  Co.,  respectively,  aprainst 
Ahhott  only,  to  recover  back  money  paid  to  him  liy  the  plaintiffs  \inder  the 
same  circxunstances  as  between  them,  which  were  tried,  ar^iued  and  determined 
with  the  cases  in  the  text. 

Tl\e  plaintitT*  had  judgment. 


o9G  merchants'  ins.  co.  v.  abbott  and  others,     [book  II. 

count  for  money  had  and  received.  Emerson  v.  Baylies,  i;>  Pick.  55; 
Perry  v.  Swascy.  I'i  Cush.  3t).  This  liability  of  Abbott  to  the  plaintiffs, 
being  a  debt  created  by  his  own  fraud,  is  not  barred  l)y  his  i-ertiticate 
of  discharge  in  bankruptcy,  l'.  S.  Hcv.  Sts.  5;  ."illT;  Turner  v. 
Atwood,  124  Mass.  411;  Mudg"  r.  Wiliiiot.  TM  Mass.  4!)3,  and 
103  U.  S.  217. 

As  to  the  other  defendants  a  different  question  is  presented.  If, 
before  receiving  the  money  from  the  plaintiffs,  they  had  known  the 
true  state  of  facts,  and  had  participated  in  Abbott's  fraud,  they  would 
have  been  liable  to  refund  the  money.  Martin  c.  Morgan,  '^  Moore, 
(535;  S.  C.  1  Brod.  &  B.  289;  Gow,  123;  Mason  v.  Waite,  IT  Mass.  560. 
But  the  report  states  that  there  was  no  evidence  offered,  nor  was  it 
contended  at  the  trial,  that  they  had  any  knowledge  of  the  fraudulent 
conduct  of  Abbott,  but  it  was  conceded  that  they  were  wholly  innocent 
parties. 

As  to  them,  therefore,  assuming  the  truth  of  the  facts  which  they 
offered  to  prove,  the  case  stands  thus:  They  held  a  valid  debt  against 
Abbott.  The  assignment  by  Abbott  to  them  was  made  in  consideration 
of  that  debt,  and  to  secure  the  payment  thereof.  The  previous  exist- 
ence of  the  debt  does  not  make  the  assignment  the  less  a  conveyance 
for  value.  Blanchard  r.  Stevens,  3  Cush.  1{)2;  Culver  v.  Benedict, 
13  Gray,  7;  Ives  v.  Farmers'  Bank,  2  Allen,  236;  Kailroad  Co.  v. 
National  Bank,  102  V.  S.  14,  58,  5!).  There  is  no  question  of  the 
validity  or  of  the  genuineness  of  the  a.ssignment.  Having  been  made 
after  the  fire,  and  after  the  amount  of  the  loss  had  been  adjusted 
between  the  plaintiffs  and  Abbott,  it  was  in  legal  effect  an  assign- 
ment of  a  claim  of  Abbott  upon  the  plaintiffs  for  a  ciM-tain  sum  of 
money.  That  claim,  not  being  negotiable  in  Uiru\,  could  not  have 
been  sued  by  these  defendants  except  in  .Abbott's  name,  and  subject  to 
any  defences  which  these  plaintiffs  had  against  him.  But  the  plain- 
tiffs, at  Abbott's  request,  and  without  any  suit,  ])aid  tin*  amount  of  the 
los.s,  as  adjusted  between  them.selves  and  Abbott,  directly  to  these 
defen<lants,  who  were  wholly  ignorant  and  innocent  of  the  fraud  of 
Ablmtt. 

Tli<!  plaintiffs  do  not  stand  in  the  position  of  resisting  a  claim  of 
Denny,  Hice  &  Co.  on  an  alleged  pronii.se  of  the  |)laintiffs,  in  which 
ca.Hc  Denny,  Rice  &  Co.  would  have  to  prove  a  valid  contract  of  the 
plaintiffs  to  pay  to  them  or  to  .Vbbott,  their  assignor,  liut  the  plain- 
tiffs an*  seeking  to  recover  back  from  Denny,  Hice  &  Co.  a  sum  of 
money  wl)i<h  the  plaintiffs  have  voluntarily  paid  to  them,  and  which 
the  plaintiffs  a.s.sort  to  l>e  wrongfully  withheld  from  tliein  by  these 
defendants,  and  which  they  are  therefore  bound  to  |)rove  that,  as 
between  these  parties,  tjje  plaintiffs  have  the  better  right  to,  and  it  is 
inefjuitable  and  unjust  that  those  defendants  should  retain. 

The  onlv  contract  of  the  plaintiffs  was  with  .\bbott,  and  the  only 
mistake  was  a.s  betwcfcn  them  and  him.     The  money  was  voluntarily 


CHAP.    11. j       .MKUCIIAXTS'  IXS.  CO.  V.  AIJJ50TT  AND  OTHERS.  597 

paid  by  the  plaintills  in  discharge  of  Abbott's  supposed  claim  ujjon 
them  under  their  policy,  and  to  these  defendants  as  the  persons 
designated  by  Abbott  to  receive  it,  and  was  in  legal  effect  a  payment 
by  the  phxintilFs  to  Abbott.  These  defendants  received  the  money,  not 
in  satisfaction  of  any  promise  which  the  plaintiffs  had  made  to  them 
(for  tho  plaintiffs  had  made  no  such  promise),  but  under  the  agree- 
ment of  Al)i)ott  with  these  defendants  that  they  might  receive  it  from 
the  pUiintiffs  and  apply  it  to  the  satisfaction  of  Abbott's  debt  to 
themselves.  In  other  words,  the  money  was  paid  by  the  plaintiffs  to 
these  defendants,  not  as  a  sum  which  the  latter  were  entitled  to  recover 
from  the  plaintiffs,  but  as  a  sum  which  the  plaintiffs  admitted  to  be 
due  to  Abbott,  under  their  own  contract  Avith  him,  and  which  at  his 
request  and  in  his  behalf  they  paid  to  these  defendants,  who  at  the 
time  of  receiving  it  knew  no  facts  tending  to  show  that  it  had  not  in 
truth  become  due  from  the  plaintiffs  to  Abbott.  This  payment  by  the 
plaintiffs  to  these  defendants  at  Abbott's  request  was  a  satisfaction  of 
Abbott's  debt  to  these  defendants,  and  might  have  been  so  pleaded 
by  him  if  sued  by  them  upon  that  debt.  Tuckerman  v.  Sleeper, 
!»  Cush.  177.  As  between  the  plaintiffs  and  these  defendants,  there 
Avas  no  fraud,  concealment,  or  mistake.  These  defendants  had  the 
right  to  receive  from  Abbott  the  sum  which  was  paid  to  them.  The 
assignment  which  they  presented  to  the  plaintiffs  was  genuine,  and 
was  all  that  it  purported  to  be.  They  hold  the  money  honestly,  for 
value,  with  the  right  to  retain  it  as  their  own,  under  a  title  derived 
from  Abbott,  and  independent  of  the  fraud  practised  by  him  upon 
the  plaintiffs. 

The  case  stands  just  as  if  the  money  had  been  paid  by  the  plaintiffs 
to  Abbott,  and  by  Abbott  to  these  defendants,  in  which  case  there 
could  be  no  doubt  that,  while  the  plaintiffs  could  recover  back  the 
amount  from  Abbott,  neither  .\])bott  nor  the  plaintiffs  could  recover 
the  amount  from  these  defendants.  The  fact  that  the  money,  instead 
of  being  paid  b}^  the  plaintiffs  to  Abbott,  and  by  Abbott  to  these 
defendants,  was  paid  directly  by  the  plaintiffs  to  these  defendants, 
does  not  make  any  difference  in  the  rights  of  the  parties.  The  two 
forms  do  not  dilfer  in  substance.  In  either  case,  Abbott  alone  is  liable 
to  the  plaintiffs,  and  these  defendants  hold  no  money  which  e.r  (vquo 
et  bono  they  are  bound  to  return  either  to  Abbott  or  to  the  plaintiffs. 

The  case  does  not  differ  in  principle  from  one  in  which  B..  having 
made  a  contract  for  the  sale  of  goods  in  his  possession  to  A.,  after- 
wards, by  A.'s  direction,  actually  delivers  them  to  C,  who  has  pur- 
chased them  from  A.  in  good  faith  for  a  valuable  consideration  as 
between  A.  and  C,  the  nature  of  which  is  known  to  B..  and  B.,  upon 
subsequently  discovering  that  the  sale  from  himself  to  A.  was  procured 
by  A.'s  fraud,  undertakes  to  recover  the  goods  or  their  value  from  C. ; 
or  from  a  case  in  which  a  bank,  having  at  the  request  of  a  debtor  paid 
money  to  his  creditor  upon  a  bond  or  a  check,  under  the  mistaken 


598  MERCIIANT.S"   INS.   CO.    V.  .VUBOTT  AND  OTIIEnS.       [BOOK    II. 

supposition  tliat  the  bond  is  sociired  1)V  mortgage  of  property  of  the 
bank,  or  that  the  l)aiik  has  funds  of  the  debtor  sufficient  to  meet  the 
check,  seeks  to  recover  back  the  monev  so  paid. 

In  Aiken  v.  Short;  1  H.  &  X.  210;  S.  C.  25  L.  J.  (X.  S.)  Ex.  321, 
the  action  was  brought  by  the  public  officer  of  a  bank  against  an 
executrix  to  recover  back  money  paid  to  her  under  the  foUovNnng 
circumstances:  George  Carter  had  made  to  the  (k'fen(hint"s  testator 
a  bond  secured  ijy  equitable  mortgage  on  property  devised  to  him  by 
Edwin  Carter;  and  had  afterwards  conveyed  the  same  ])roperty  to  the 
bank,  the  latter  agreeing  to  pay  the  bond.  The  defendant  applied  to 
George  Carter  to  pay  the  bond,  and  was  referred  by  him  to  the  bank, 
which,  conceiving  that  the  defendant  had  a  good  equital)le  charge,  paid 
the  debt  to  get  rid  of  the  charge  affecting  its  o^^^l  interest.  By  the 
discovery  of  a  later  will  of  Edwin  Carter,  it  turned  out  that  George 
Carter  had  no  title  to  the  property,  and  consequently  that  the  defend- 
ant had  no  title,  and  the  bank  had  none.  It  was  held  that  the  bank 
could  not  recover  back  the  money  which  it  had  paid  to  the  defendant 

Chief  Baron  Pollock,  according  to  Hurlstone  and  Xorman's  report, 
after  stating  the  facts  of  the  case,  said  :  ''The  bank  had  ]iaid  the  money, 
in  one  sense,  without  any  consideration,  but  the  defendant  had  a 
perfect  right  to  receive  the  money  from  Carter,  and  the  bankers  paid 
for  him.  They  should  have  taken  care  not  to  have  paid  over  the 
money  to  get  a  valueless  security;  but  the  defendant  has  nothing  to 
do  with  their  mistake.  Suppose  it  was  announced  that  there  was 
to  be  a  dividend  on  the  estate  of  a  trader,  and  persons  to  whom  he 
was  indebted  went  to  an  office  and  received  instalments  of  the  debts 
due  to  them,  coidd  the  party  paying  recover  back  the  money  if  it 
turned  out  that  he  was  wrong  in  su])i)osing  that  he  had  funds  in  hand? 
The  money  was  in  fact  paid  by  the  bank  as  the  agents  of  Carter." 
1  II.  &  X.  214.  By  the  similar  but  fuller  report  in  the  Law  Journal, 
it  appears  that  the  Chikf  Baron,  after  observing  that  the  bankers 
"had  paid  the  money,  no  doubt,  in  one  sense,  witiiout  any  considera- 
tion," added,  "What  is  that  to  the  defendant,  who  received  it,  having 
a  perfect  right  to  receive  his  [her]  money  from  somebody,  that  is, 
from  George  Carter?  And  I  think  the  bankers  must  b(>  considered 
rather  as  paying  it  for  (ieorge  Carter,  and  they  ought  to  have  taken 
care  that  they  did  not  pay  in  their  own  wrong  when  they  paid  it.  It 
appears  to  me  that  this  does  not  at  all  fall  within  any  case  whatever 
deciding  that  monev  may  be  recovered  back  because  it  has  been  paid 
under  a  mistake."    "25  l'  J.  (X.  S.)  Ex.  ^^2^^. 

Jiarons  Tlatt,  Martin  and  Uhamwkll  were  of  the  same  n]>inion. 
Baron  Pl.\tt  said,  "The  action  for  money  had  and  received  lies  only 
for  monev  whieh  the  defendant  ought  to  refund  or  rrqun  rt  bono;" 
and,  after  stating  the  other  faets.  said,  "Carter  referred  her  to  the 
bank,  who  paid  the  debt,  and  the  bond  was  satisfied.  The  money  which 
the  defendant  got  from  her  debtor  was  actually  due  to  her,  and  there 


CHAP.    II.]       merchants'  ins.  CO.  V.  ABBOTT  AND  OTHERS.  599 

can  be  no  obligation  to  refund  it  (1  11.  &  X.  214,  215)  ;  or,  according 
to  the  fuUej'  report,  "He  refers  her  to  the  bank.  They,  acting  as  his 
agents,  upon  being  referred  to,  pay  his  del)t.  How  can  that  be  prop- 
•erly  recoverable?  Surely  the  debt  is  satisfied.  The  dobt  was  due. 
It  is  not  as  thousfh  there  were  no  debt  due,  and  there  was  a  mistake 
of  fact ;  but  here  the  debt  was  actua  Jy  due,  and  the  money  was  paid 
to  satisfy  that  debt.  It  appears  to  me  clear,  beyond  all  question,  that 
this  money  cannot  be  recovered  back."  25  L.  J.  (N.  S.)  Ex.  324. 
Baron  Martin  said,  "The  case  comes  to  this:  If  I  apply  to  a  man  for 
payment  of  a  debt,  and  some  third  person  pays  me,  can  he  recover 
back  the  money  because  he  has  paid  it  under  some  misapprehension?" 
1  H.  &  N.  213,  214. 

In  Chambers  v.  Miller,  13  C.  B.  (X.  S.)  125;  S.  C.  32  L.  J.  (X.  S.) 
C.  P.  30,  the  plaintiff  presented  at  the  defendants'  bank  a  check  drawn 
on  them  by  a  customer,  and  received  the  money;  and  after  he  had 
counted  it  over  once,  and  while  he  was  recounting  it,  the  defendants, 
having  meanwhile  discovered  that  the  customer's  account  was  over- 
drawn, forcibly  detained  the  plaintiff,  compelled  him  to  give  up  the 
money,  and  returned  the  check  to  him ;  and  he  brought  an  action 
against  them  for  assault  and  battery.  Chief  Justice  Erle  at  the  trial 
ruled  that  the  j^roperty  in  the  money  had  passed  to  the  plaintiff,  and 
consequently  that  the  defendants'  Justification  failed;  and  his  ruling 
was  confirmed  by  the  court  in  banc.  The  question  whether  the  de- 
fendants had  a  right  to  take  back  the  money  by  force,  though  men- 
tioned by  some  of  the  judges,  was  not  reserved  or  decided.  See 
especially  32  L.  J.  (X.  S.)  C.  P.  31,  note. 

The  ground  assigned  for  the  decision  by  Chief  Justice  Erle  and 
Mr.  Justice  Williams  was,  that  the  money,  having  been  once  paid 
by  the  bankers  to  the  payee  of  the  check,  became  irrevocably  his,  and 
they  could  not  have  recovered  it  back  from  him  in  an  action  for  money 
had  and  received,  because  as  between  them  and  him  there  was  no 
manner  of  mistake,  for  the  check  was  genuine,  and  the  money  was 
due  from  the  drawer  to  the  payee,  and  the  mistake  as  to  the  amount 
of  the  drawer's  funds  in  the  hands  of  the  l)ankers  was  a  mistake 
hetween  him  and  them  only,  with  wliich  the  payee  had  nothing  to  do. 
The  Chief  Justice  distinguished  the  case  from  that  of  Kelly  v. 
Solari,  above  cited,  in  that  "there  the  money  was  paid  to  a  party  who 
had  no  right  to  it  whatever,  and  the  mistake  was  between  the  parties 
themselves  as  to  the  money  being  due."  32  L.  J.  (X"".  S.)  C.  P.  33. 
The  like  distinction  was  taken  in  Hull  v.  South  Carolina  Bank, 
Dudley,  259,  262.  and  in  Guild  r.  Baldridge.  2  Swan.  295,  303. 

So  in  Pollard  v.  Bank  of  England.  L.  P.'fi  Q.  B.  (:23.  Lambton  &'  Co.. 
bankers,  under  the  mistaken  belief  that  they  held  funds  of  the  acceptor 
of  a  bill  of  exchange,  paid  the  amount  of  the  bill  to  the  Bank  of 
England,  which  had  discounted  the  bill  for  the  drawer;  and  it  was 
held,  in  a  considered  judgment  delivered  by  Mr.  Justice  Blackburn, 


600  merchants'  ins.  co.  v.  abbott  WD  oTiiEus.     [book  II. 

in  behalf  of  himself  and  Chief  Justice  Cockbdrn  and  Justices  Mellor 
and  LisH,  that  Lambton  &  Co.  could  not  recover  back  from  the  Bank 
of  England  the  amount  so  paid,  and  that  the  Bank  of  England  there- 
fore held  the  amount  on  the  drawer's  account. 

For  these  reasons,  the  court  is  of  ojiinion  that,  assuming  the  truth 
of  the  facts  of  which  evidence  was  introduced  by  the  defendants,  the 
plaintiffs  may  maintain  the  action  against  Abbott,  and  not  against 
Denny,  Rice  &  Co. 

In  any  view  of  the  case,  Denny,  Rice  Si  Co.  and  Abbott  cannot  be 
jointly  charged  in  this  action.  They  have  made  no  joint  contract 
with  the  plaintiffs,  nor  have  they  jointly  received  money  from  the 
plaintiffs.  The  grounds  of  liability  of  the  two  are  distinct.  The 
liability  of  Abbott  to  the  jiiaintitr  rests  upon  the  ground  that,  by 
reason  of  his  frmid  and  their  mistake,  they  have  at  his  request  paid 
money  to  the  othe^  defendants  for  his  benefit;  and  it  is  independent 
of  the  question  of  the  amount  of  his  debt  to  the  other  defendants. 
The  liability  of  Denny,  Rice  &  Co.,  who  were  not  iiarties  to  any  fraud 
or  mistake,  can  rest  upon  no  other  ground  than  their  receipt  and 
retention  of  money  to  which  they  have  no  right,  and  which,, as  between 
them  and  the  plaintiffs,  justly  belongs  to  the  latter;  and  this  liability 
cannot  exist  unless  the  amount  of  the  debt  due  from  Abbott  to  them 
is  less  than  the  sum  of  money  which  they  have  received  from  the 
plaintiffs.  The  allegation  in  the  amended  declaration,  that  the  money 
was  paid  by  the  plaintiffs  for  the  joint  use  and  l)onefit  of  l)oth  defend- 
ants, is  therefore  unsupported  by  the  evidence,  and  the  objection  on 
the  ground  of  this  variance  might  be  taken  by  the  defendants  at  the 
trial.     Manahan  v.  Gibbons,  19  Johns.  109. 

The  other  four  actions  are  brought  against  Abbott  and  the  members 
of  the  firm  of  Browne,  Stoose  S:  Clarke.  Tlie  only  particulars  appear- 
ing by  the  report,  in  which  these  cases  differ  from  tlie  first,  are  that 
the  evidence  introduced  by  the  other  defendants  tended  to  show  that 
Abbott's  debt  to  them  was  In  part  for  money  advanced  by  them  to  him 
after  the  fire;  that  each  of  the  assignments  executed  l)y  him  to  them 
was  in  form  a  simple  assignment  of  all  his  "right,  title,  and  inti^est 
in  this  policy,  and  all  benefit  and  advantage  to  be  derived  therefrom;" 
and  that  in  the  fifth  case  .Ablmtt  signed  a  separate  receipt  similar  to 
that  signed  by  them,  and  tlie  cheek  given  by  the  pliiiniifTs  was  ])ayal)le 
to  the  order  of  .\bbott  and  the  other  defendants. 

But  a.^  the  evidence  introduced,  as  stated  in  the  report,  showed  that 
in  all  these  four  cases  "the  amounts  dne  on  the  policies  as  adjusted, 
assigned  to  them  as  aforesaid,  were  paid  to  Browne,  Steese  &  Clarke 
by  the  insurance  companies  at  the  expiration  of  fhe  sixty  days  allowed 
by  the  terms  of  the  policies,  and  the  money  kept  by  fliem,  and  no  part 
of  it  paid  to  .\bbott."  a  majority  of  fhe  court  is  of  opinion  that  neither 
the  difTerence  in  the  form  of  the  iissiLrnments  in  the  four  case.s,  nor 
that  in  the  form  of  the  receipts  and  of  the  check  in  one  of  them,  can 


CHAP.    II.]       MKRCIIAXTS'  IXS.  CO.  V.  ABBOTT  AND  OTHERS.  GOl 

affect  the  result;  but  tlmt  the  assignment  in  each  case,  liaving  I)een 
made  after  the  fire,  and  after  the  adjustment  of  the  loss  as  between 
the  company  and  Abbott,  was  in  legal  effect  not  an  assignment  of  the 
policy  as  an  existing  contract  of  indemnity  against  future  contin- 
gencies, but  only  an  assignment  of  a  claim  upon  the  company  for  an 
ascertained  sum  of  money;  and  that  assuming  the  truth  of  the  facts 
offered  to  be  proved  by  the  defendants,  this  sum,  having  been  paid 
by  the  company  to  Browne,  Steese  &  Clarke,  without  any  fraud  or 
mistake  as  between  them,  and  not  exceeding  the  amount  of  the  de- 
mands of  Browne,  Steese  &  Clarke  against  Abbott,  cannot  be  recovered 
back  from  them,  but  from  him  only. 

The  report  provides  that,  if  the  court  should  be  of  opinion  that  the 
plaintiffs  have  no  joint  cause  of  action  against  tlie  defendants,  they 
may  elect  which  of  the  defendants  they  will  discontinue  against,  and 
such  further  proceedings  shall  thereupon  be  had  as  law  and  justice 
may  require.  The  other  defendants,  in  each  case,  contend  that,  as 
Abbott  is  the  only  party  whose  residence  or  place  of  business  is  in  the 
county  of  Middlesex,  the  other  defendants  residing  and  doing  lousiness 
in  Suffolk  and  the  plaintiffs  being  a  foreign  corporation,  therefore. 
if  the  plaintiffs  elect  to  discontinue  against  Abbott,  the  defendants 
should  be  entitled  to  the  same  right  to  move  to  dismiss,  or  plead  in 
abatement,  that  they  would  have  had  if  the  action  had  originally  been 
brought  against  them  alone,  and  they  propose  to  plead  in  abatement 
that,  as  between  them  and  the  plaintiffs,  the  action  is  brought  in  the 
wrong  county.  Gen.  Sts.  c.  133,  §  1.  But  the  action  was  rightly 
brought  in  the  county  in  which  one  of  the  defendants  resided,  and 
the  case  has  been  fully  tried  on  the  merits,  without  objection  being 
taken  to  the  venue  by  motion  to  dismiss  or  answer  in  abatement.  The 
statutes  provide  that  amendments  discontinuing  as  to  any  joint  plain- 
tiff or  defendant  may  be  allowed  at  any  time  before  final  judgment, 
that  judgment  shall  not  be  arrested  in  any  civil  action  by  reason  of 
a  mistake  of  venue;  and  that  judgment  may  be  entered  against  such 
defendants  as  are  found  on  the  trial  to  be  liable  on  the  contract 
declared  on,  notwithstanding  it  is  found  that  all  the  defendants  are 
not  jointly  liable  thereon.  Gen.  Sts.  c.  1-39,  §§  41,  79;  c.  UG.  §  4; 
c.  133,  §§  5,  6.  And  the  court  is  not  ousted  of  its  jurisdiction  of  a 
transitory  action,  once  acquired  l)y  service  upon  a  defendant  residing 
in  the  county,  by  a  failure  to  recover  against  him  at  the  trial.  Lucas  r. 
Nichols,  5  Gray,  309.  The  plaintiffs  are  therefore  entitled,  pursuant 
to  the  leave  reserved  in  the  report,  to  elect  to  prosecute  their  action 
against  either  defendant. 

Under  the  rulings  at  the  trial,  the  facts  which  the  evidence  intro- 
duced by  the  other  defendants  tended  to  show,  a.-  to  the  validity  and 
amount  of  Abbott's  del)ts  to  them,  became  immaterial,  and  were  not 
passed  upon  by  the  jury,  and  the  plaintiffs  are  entitled,  if  they  so 
elect,  to  a  new  trial  for  the  purpose  of  determining  these  facts.     If, 


COS  merchants'  ins.  co.  r.  abbott  axd  others,     [book  ii. 

for  this  purpose,  they  elect  further  to  prosecute  either  action  against 
the  other  defendants,  they  must  discontinue  against  Abbott ;  and 
neither  the  question  of  Abbott's  fraud,  whicli  has  been  fully  tried  and 
settled  by  the  verdict,  nor  tlie  question  of  the  other  defendants'  inno- 
cence of  that  fraud,  which  was  conceded  at  the  former  trial,  is  to 
be  open  upon  the  new  trial.  Winn  v.  Columbian  Ins.  Co.,  12  Pick. 
345 ;  Bobbins  v.  TowTisend,  20  Pick.  345 ;  Bardwell  v.  Conway  Ins. 
Co.,  118  Ma^s.  4G0.  If,  on  the  other  liand,  the  i)laintiffs  elect  to  dis- 
continue against  the  other  defendants,  judgment  must  be  entered 
for  the  latter,  and 

Judgment  for  the  plaintiffs  against  Abbott  alone} 

'In  Walker  v.  Conant  (1888)  G9  Mich.  321.  the  facts  and  holding  of  the  court 
were  as  follows:  "Stripped  of  all  sophistry,  the  naked  case  is  this:  Van 
Riper  obtains  $3,000  of  the  plaintiff  upon  a  forged  mortgage,  and.  out  of  the 
money  so  obtained,  pays  Mrs.  Conant  the  debt  he  owes  her,  wliich  is  evidenced 
by  a  forged  note,  and  secured  by  o  forged  mortgage  ujjon  the  same  premises 
described  in  the  mortgage  to  plaintiff.  The  money  is  honestly  her  due,  and 
she  has  an  equital)Ie  right  to  demand  and  receive  it  of  Edgar  [Van  Riper]  ; 
and,  believing  her  .securities  to  be  genuine  and  valid,  she  takes  the  money, 
and  surrenders  them  up  to  him  to  be  canceled  and  destroyed,  and  in  utter 
ignorance  of  the  fraud  perpetrated  by  Van  Riper.     .     .     . 

"And  the  autliorities  are  uniform  that  where  the  money  is  received  in  good 
faith,  and  in  the  ordinary  course  of  business,  and  for  a  valual)le  consideration, 
it  cannot  be  recovered  back  because  the  money  was  fraudulently  (jbtained  of 
some  other  person  by  the  payor. 

"To  hold  otherwise  would  be  to  put  every  man  who  receives  money  in  the 
due  course  of  his  business  upon  inquiry,  at  his  peril,  as  to  the  manner  in  which 
such  money  was  procured  by  the  payor.  Justh  v.  Bank,  50  N.  Y.  484 ;  ^lason 
V.  VVaite,  17  Mass.  503;  Warren  r.  Haight.  05  X.  V.  171,  178;  Reed  r.  Bank, 
fi  Paige,  337;  Currie  r.  Misa,  12  Moak.  Kng.  R.  5!)2,  005;  Watson  v.  Russell, 
31  L.  .J.  (l  B.  .304;  Rapalje  v.  Kmory,  2  Dall.  51,  54;  Stevens  r.  Board,  etc.,  71> 
N.  Y.  183." 

And  in  Spaulding  r.  Kendrick  (iSitS)  172  Mass.  71,  72,  Knowltox,  J. 
(since  C.  J.),  said:  "The  law  of  the  case  is  settled  by  numerous  decisions.  If 
a  thief  gives  stolen  money,  or  negotiable  securities  before  their  maturity,  in 
payment  of  his  debt,  or  as  security  for  it,  to  one  who  in  good  faith  receives  the 
money  or  securities  as  belonging  to  liim,  the  creditor  can  liold  tlu'  property  as 
against  the  true  owner.  .\s  l>ctween  tlie  payor  and  the  payee  there  is  no  mis- 
take wliich  affects  the  validity  of  the  transaction.  One  receiving  money  or 
negotiable  se<'urities  in  payment  of  or  as  security  for  an  existing  debt  is  not 
botind  to  inquire  where  the  money  or  securities  were  obtaincil.  It  is  better 
that  money  or  a  negotiable  security,  passing  from  hand  to  liand  to  one  who 
rightly  reeeivps  it  for  a  valuable  cftnsideratiim.  should  carry  on  its  face  its 
own  credentials.  Men-hants'  Ins.  Co.  r.  .\l)bott.  131  Mass.  3517;  Lime  Rock 
Bank  v.  Plimpton,  17  Pick.  150;  f;reenfield  School  District  r.  First  Xaticmal 
Bank,  102  Mass.  174;  Thatcher  r.  Pray,  113  Mass.  201  ;  E.x  parte  Apsey.  3  Bro. 
C.  C.  205;  .Taques  v.  Marquand.  0  Cowen,  407;  Dunlap  v.  Lima,  40  Iowa,  177. 
See  also  Mason  r.  Waite.  17  Mass.  500,  503;  Worcester  County  Bank  r.  Dor- 
chester &  Milton  Bank,  10  Cash.  488.    It  has  often  been  decided  in  this  Com- 


CHAP.    II.]  WATSOX   V.   DUYKINCK.  603 


SECTION    II. 
The  Failure  is  Due  to  Xox-performaxce  of  the  Contract  or 

OF   A    COXDITIOX    BY    OXE    PaRTY. 
1.     THE   DEFAULT   IS   DEFEXDED   OX    THE    GROUXD   THAT, — 

(a)  Performance  is  Impossible. 
(1)  The  Defendant  pleads  Impossibility. 

WATSOX  V.  DUYKINCK. 

Supreme  Court  of  New  York,  1808. 

[3  Johnson,  335.] 

This  cause  came  before  the  court,  on  a  writ  of  error,  from  the  Court 
of  Common  Pleas  of  the  city  and  county  of  New-YorJc.  The  suit 
below  was  an  action  of  assumpsit  for  money  had  and  received  to  the 
use  of  the  plaintiff,  and  a  special  verdict  was  found,  upon  which  the 
court  gave  judgment  in  favor  of  the  plaintiff  for  GO  dollars,  on  which 
the  defendant  below  brought  a  writ  of  error  to  this  court.  The  sub- 
stance of  the  special  verdict  was  as  follows:     The  defendant  below, 

monwealth  that  a  pre-existing  debt  is  valuable  consideration  for  a  payment 
made  or  a  security  given  on  account  of  it.  Blanchard  v.  Stevens,  3  Cush.  162; 
Fisher  v.  Fisher,  98  Mass.  303;  Goodwin  v.  Massachusetts  Loan  &  Trust  Co. 
152  Mass.  189,  199:  Merchants'  National  Bank  v.  Haverhill  Iron  Works,  159 
Mass.  158;  National  Revere  Bank  v.  Morse,  163  Mass.  383." 

In  Youmans  v.  Edgerton  (1878)  16  Hun,  28  (affirmed  in  91  N.  Y.  403) 
the  same  principle  Avas  applied.  It  appeared  that  one  A.  contracted  with  B. 
to  convey  the  latter  a  tract  of  land  upon  payment  of  the  full  purchase  price. 
A.  assigned  his  contract  with  B.  to  X.,  and  B.  assigned  his  interest  in  the  con- 
tract for  conveyance  to  Y..  who  paid  the  balance  of  the  purchase  price  to  X., 
A.'s  assignee,  and  called  for  a  conveyance.  It  appeared  that  A.  did  not  have 
title  to  the  land  in  question,  but  this  fact  was  unknoAATi  to  the  various  parties 
other  than  A.  The  conveyance  not  being  forthcoming,  Y.  sues  X.  in  assumpsit 
as  for  a  failure  of  consideration,  but  the  court  held,  and  rightly,  it  would 
seem,  that  Y.'s  claim  against  A.,  not  X.,  who  was  a  purchaser  for  value 
froni  A. 

To  quote  from  tlie  Court :  "Upon  the  facts  found  by  the  referee,  the  plain- 
tiff might  have  an  action  against  Shorer  [A.]  for  breach  of  contract,  or  by  suit 
for  specific  performance,  but  none  against  Edgerton  [X.],  either  upon  legal  or 
equitable  grounds;  the  money  Mhich  he  got  was  actually  due  to  him,  and  there 
can  be  no  obligation  to  refund  it."  91  N.  Y.  403.  411. — See  also  Newhall  v. 
Wyatt   (1893)    139  N.  Y.  452. 

The  doctrine  of  purchaser  for  value,  upon  which  the  right  of  retention  in 


G04  WATSOX    V.    DUYKINCK.  [bOOK    II. 

{Wattion)  on  the  ITth  December,  1805,  was  master  of  the  sloop  Har- 
riot, bound  on  a  voyage  from  Xew-York  to  the  island  of  St.  Thomas. 
Watson  agreed  with  the  plaintiff  below  {Dui/kinck)  that,  in  consid- 
eration of  100  dollars  to  be  paid  immediately,  he  would  suffer  the 
plaintiff'  to  proceed  in  the  sloop,  as  a  passenger,  on  the  voyage,  and  to 
load  on  board,  for  transportation,  merchandise  to  the  value  of  GOO 
dollars,  and  that  the  defendant  would  provide  meat,  drink,  &c.  for  the 
plaintiff",  during  the  voyage."  The  plaintiff*  agreed  to  j)ay  that  sum, 
and  accordingly  paid  it  on  the  same  day  to  the  defendant.  On  the 
23d  December,  1805,  the  plaintiff  embarked,  as  a  passenger,  and 
defendant  procured  sufficient  necessaries,  &c.,  and  the  plaintiff  put 
goods  on  l)oard,  to  the  value  of  (iOO  dollars.  The  sloop  sailed  on 
the  same  da}',  on  the  voyage,  and  was  seaworthy.  She  sprung  a 
leak,  two  days  after  leaving  the  port  of  yeiv-York-,  and  was  obliged 
to  bear  away  for  New-London.  On  her  way  there,  she  was  unavoidably 
wrecked  on  Xonvnlk  hhuni,  and  lost ;  the  master  and  crew  returned, 
in  10  days  thereafter,  to  Xew-york.  The  chief  ])art  of  the  cargo  was 
saved  and  brought  to  New-York,  and  the  goods  of  the  plaintiff  were 
delivered  to  him.  The  plaintiff  assisted  equally  with  the  crew  in  en- 
deavoring to  save  the  vessel  and  cargo.  The  expense  of  saving  the 
cargo,  and  bringing  it  to  New-York,  was  paid  by  the  defendant.  The 
average  charge  on  the  plaintiff's  goods,  towards  the  expenses  of  sal- 
vage, was  20  dollars.  The  defendant  provided  no  other  vessel,  but 
the  plaintiff  went  to  St.  Thomas  in  another  vessel.     The  usual  price 

these  ca.ses  depends,  is  adinii:il>ly  -luted  in  tlic  fnllnwing  passaj^e  from  Lord 
BowK.N'.s  opinion  in  Taylor  r.  Biakclock  (  ISHd)  J..  R.  32  Ch.  D.  560.  569-70: 
"IJlakcIock  lias  ;,'ot  a  l(';,'al  ri^'lit  to  tliis  property,  and  wliv  on  earth  is  it  to  be 
taken  away  from  liiin?  It  can  only  he  taken  away  from  him  on  the  ;.Toiind  of 
Home  hrcach  of  trust  which  alVccts  it.  No  douht.  if  he  had  notice,  tlicn  his 
legal  title  would  disajjpcar.  would  l»c  invalidated.  It"  he  was  a  volunteer  he 
could  not  stand  in  a  lutter  po-ition  tlian  the  jjcrson  who  conveyed  to  him:  hut 
if  he  is  not  a  volunteei,  u|)on  what  principle  can  you  take  away  his  property? 

"That  really  rciiuces  it  to  ilic  -in!ple  question  of  what  is  the  meaning  of 
the  term  'a  purcliascr  for  value"  in  such  cases?  '.\  purchaser  for  value'  is  n 
well-known  expression  to  the  law.  I?y  the  common  law  of  this  country  the 
payment  of  an  exi>-ting  ilcht  is  a  fiaymcnt  for  valuable  coJisideratirm.  That 
was  always  tlie  law  before  tlie  reign  of  (j)ueen  l-^lizalu'th,  as  well  as  since.  Com- 
mercial transactions  are  based  u|)on  that  very  idea.  It  is  one  of  the  elemen- 
tary legal  principles,  as  it  seems  to  me.  which  belong  to  every  civilized  coun- 
try; and  many  of  the  comnicriial  instrtimcjits  which  the  law  recognizes  have 
no  other  consideration  wlialivcr  tliaii  a  jire-cxisting  debt. 

"The  man  who  has  :i  delit  due  to  him,  when  he  is  j)aid  the  del)t,  has  con- 
verted the  right  to  be  paid,  into  .utual  jtossession  of  the  money;  he  cannot 
have  botli  the  right  to  lie  paid  ami  the  |(ossession  of  the  money.  In  taking 
payment  he  relinquishes  the  riyht  for  the  fruition  of  the  right.  In  such  a  case 
the  transactirm  is  er)mj>b'ted;  an<l  to  invalidate  that  transaction  would  lie  to 
lull  ereditors  into  a  false  sccuritv,  ancl  to  unsettle  business." — Ed. 


CHAP.    II.]  WATSON    V.    UUYKIXCK.  605 

for  a  passage  to  St.  Thomas,  for  a  passenger,  is  80  dollars,  and  50 
dollars,  if  he  finds  himself.  By  the  usage  and  custom  of  New-YorJc, 
passage  money  is  paid,  at  the  time  the  passage  is  taken,  and  is  never 
refunded  if  the  voyage  has  begun,  though  a  subsequent  accident 
should  prevent  its  completion.  But  whether  the  plaintiff  is  entitled  to 
recover  back  the  100  dollars  paid  by  him,  or  the  same  after  deducting 
the  salvage  aforesaid,  or  whether  the  defendant  is  entitled  to  have 
the  ;^0  dollars  certified  in  his  favor,  the  jurors  are  ignorant,  &c. 

The  following  points  were  made  and  insisted  on  by  the  counsel  for 
the  plaintiff  in  error : 

1.  That  the  passage  money  cannot  by  law  be  recovered  back,  under 
the  circumstances  of  the  case. 

2.  That  the  custom  found  by  the  jury  is  conclusive  against  such 
recovery. 

3.  That,  even  if  the  plaintiff  was  entitled  to  recover  back  his  pas- 
sage money,  it  could  not  be  in  this  form  of  action. 

Kent,  Ch.  J.,  delivered  the  opinion  of  the  court.  The  record  in 
this  case  presents  a  question  of  some  nicety  and  difficulty,  arising  under 
the  marine  law.  The  general  rule  undoubtedly  is,  that  freight  is  lost 
unless  the  goods  are  carried  to  the  port  of  destination.  The  rule  seems 
also  to  go  further,  and  to  oblige  the  master,  in  case  of  shipwreck,  to 
restore  to  the  shipper  the  freight  previously  advanced.  The  English 
books  are  almost  silent  on  the  subject,  and  afford  little  or  no  informa- 
tion; but  if  we  resort  in  this,  as  we  are  obliged  to  do  in  many  other 
instances,  for  light  and  information,  to  foreign  compilations,  and 
distinguished  writers  on  maritime  jurisprudence,  we  shall  find  the 
point  before  us  to  have  been  considered  and  decided. 

Cleirac,  in  his  commentary  on  the  judgments  of  Oleron,  art.  9.  no. 
9  {hs  Us.  et  Coutumes  de  la  Met;  p.  42.)  declares,  that  in  cases  of 
shipwreck,  the  master  is  bound  to  render  to  the  merchants,  the  ad- 
vances which  they  may  have  made  upon  the  freight,  and  he  cites  a 
decision  of  one  of  the  early  jurists,  in  confirmation  of  his  doctrine: 
Naufragio  facto  exercitor  naula  resiitnit  quce  ad  manum  perccperat, 
ut  qui  non  trajecerit.  The  ordinance  of  the  marine  (tit.  du  Fret, 
art.  18.)  recognizes  this  ancient  rule,  and  ordains,  that  if  goods  be  lost 
by  the  perils  of  the  sea,  the  master  shall  be  holden  to  refund  the  freight 
which  had  been  previously  advanced  to  him,  unless  there  be  a  special 
agreement  to  the  contrary.  This  agreement,  according  to  Valin, 
(Comm.  sur  V  Ord.  torn.  1.  p.  661.)  always  contain?  an  express  stipu- 
lation, that  the  money  advanced  shall  be  retained  in  any  event  which 
may  happen  in  the  course  of  the  voyage.  The  policy  of  the  general 
rule  on  this  subject,  was  to  take  away  the  temptations  to  negligence 
or  misconduct,  which  the  certainty  of  freight  was  calculated  to  produce 
in  the  master.  I  ought,  perhaps,  to  observe,  that  there  is  a  dictum 
of  Mr.  Chief  Justice  Saunders,  stated  in  an  anonymous  case,  in 
2  Show.  283,  which  would  seem  to  imply,  that  advance  money  for 


606  -WATSON    V.    DUYKIXCK.  [BOOK   II. 

freight  was,  in  no  event,  to  be  refunded ;  but  I  do  not  place  reliance 
upon  that  very  imperfect  report,  in  opposition  to  the  explicit  opinions 
of  the  writers  which  have  been  nieutioued. 

The  general  principle  undoubtedly  is,  that  freight  is  a  compensa- 
tion for  the  carriage  of  goods,  and  if  paid  in  advance,  and  the  goods 
be  not  carried,  by  reason  of  any  event  not  imputable  to  the  shipper, 
it  then  forms  the  ordinary  case  of  money  paid  upon  a  consideration 
which  happens  to  fail. 

The  general  rule  being  then  well  established,  the  present  case  turns 
upon  this  point,  whether  the  agreement  stated  in  the  special  verdict, 
be  such  as  to  take  the  case  out  of  the  oi)eratiou  of  the  rule.  The  parties 
agreed,  that  in  consideration  of  100  dollars,  to  be  paid  immediately, 
the  one  would  suffer  the  other  to  proceed  and  go  in  the  sloop,  as  a 
passenger,  on  the  voyage,  and  to  load  on  board,  for  transportation, 
merchandise  to  the  value  of  600  dollars,  and  that  he  would  also  main- 
tain him  as  a  passenger,  during  the  voyage.  The  other  party  assented 
and  paid  the  money,  and  put  the  goods  on  board,  and  proceeded  with 
them  as  a  passenger,  until  the  disaster  took  place.  This  agreement 
did  not  go  the  length  required  by  the  French  law  of  stipulating  that 
the  money  should  at  all  events  be  retained,  but  it  was  still  particularly 
confined  to  the  permission  to  be  received  on  board,  as  a  passenger,  and 
to  load  the  goods  on  board.  Both  these  parts  of  the  agreement  were 
literally  complied  with.  This  can  easily  be  distinguished  from  an 
agreement  to  transport  and  deliver  at  the  place  of  destination.  In 
the  one  case,  the  master  places  his  compensation  upon  the  actual 
carriage  and  delivery  of  the  goods.  The  safe  arrival  of  the  subject 
is  a  condition  precedent  to  the  payment.  In  the  other  case,  the  con- 
sideration is  rendered  by  receiving  the  goods  on  board,  and  making 
all  due  and  bona  fide  efforts  to  carry  and  deliver  them.  I  think  this 
latter  is,  upon  the  whole,  the  better  construction  of  the  agreement 
before  us,  especially  as  the  practice  of  retaining  the  advance  freight, 
in  all  .such  Cases,  must  have  been  known  to  the  parties,  from  the  usage 
which  has  been  found  by  the  jury,  and  as  the  distinction  between  an 
agreement  to  receive  on  board,  and  an  agreement  to  transport  and 
deliver,  is  not  a  new  refinement,  but  can  l)e  traced  back  to  the  text 
of  the  civil  law.  The  doctrine  is  recognized  and  adopted  by  various 
authors,  that  if  the  agreement  be  to  pay  freight  for  tlie  loadxnq  of  the 
article  on  hoard,  the  freight  is  due,  though  the  article  perish  in  the 
course  of  the  voyage.    This  is  the  language  of  the  civil  law. 

Gothofredus,  in  his  notes  on  the  Digest  (14.  2.  10.)  states  the 
distinction  in  more  clear  and  explicit  terms:  Conduxisti  vchenda 
mnncipia:  mancipium  nnum  in  vavi  moriuum  cat:  qna^ritur,  num. 
vcrtura  drheatur?  Si  dr  mancipiis  I'ehendis  inila  conventio  est,  non 
dchetur:  si  de  mnnripiis  tantum  nnvi  imponendis  dehctur. 

MoUoy  (b.  2.  c.  4.  §  8.)  and  Ahhoit  (p.  '225.)  seem  to  have 
followed    the   same   authorities,   but   without   making   any   discrim- 


CHAP.    II.]  REINA    V.    CROSS.  607 

ination  between  the  cases  where  the  money  was,  and  where  it  was 
not  actually  advanced  beforehand.  Perhaps,  no  such  discrimination 
is  to  be  made,  though  1  think  the  case  of  the  money  actually  advanced 
is  the  stronger  case,  as  forming  superior  evidence  of  the  intention  of 
the  parties  that  the  freight  received  should,  in  every  event,  belong  to 
the  master. 

We  conclude,  upon  the  whole  view  of  this  case,  that  Watsori,  the 
plaintiff  in  error,  was  entitled  to  retain  the  freight  money,  and,  con- 
sequently, that  the  judgment  below  ought  to  be  reversed. 

Tiio:mpson,  J.,  not  having  heard  the  argument  in  the  cause,  gave 
no  opinion. 

Judgment  reversed. 


EEINA  V.  CROSS. 

Supreme  Court  of  California^  1856. 

[6  California,  29.] 

Appeal  from  the  District  Court  of  the  Twelfth  Judicial  District. 

The  record  discloses  that  on  the  13th  of  March,  1855,  the  plaintiff, 
and  David  Mitchell,  as  master,  entered  into  a  charter  party,  by  which 
Mitchell  chartered  to  the  plaintiff  the  ship  Don  Juan,  for  a  voyage 
from  "San  Francisco  to  Acapulco,  there  to  load  such  pearl  shell  and 
Brazil  wood  as  the  charterer  may  have  ready;  thence  to  proceed  to 
Salado,  there  to  complete  a  full  cargo  of  Brazil  wood,  and  proceed 
therewith  to  Val])araiso."  Among  other  things,  it  was  stipulated  that 
the  charterer  "advance  on  (said)  freight  $500,  payable  at  vSan  Fran- 
cisco, on  signing  the  charter  party,  and  $1,000  on  arrival  at  Acapulco, 
free  of  interest  and  commission."  The  balance  of  the  freight  was  to 
be  paid  upon  delivery  of  the  cargo  at  Valparaiso.  The  respective  sums 
of  $500  and  $1,000  were  paid  at  the  time  and  places  designated.  The 
first  payment  was  made  directly  to  Cross  the  defendant,  and  the  second 
by  draft  on  San  Francisco.  The  ship  was  laden  in  accordance  with  the 
articles  of  agreement,  and  on  her  voyage  to  Acapulco  was  wrecked,  and 
vessel  and  cargo  totally  lost.  This  action  was  instituted  to  recover 
back  the  sum  of  $1,500  freight  paid  in  advance. 

The  complaint  contained  two  counts.  The  first  setting  forth  the 
charter  party  and  assigning  the  breach  thereof,  without  alleging  that 
it  was  caused  by  the  fault  or  negligence  of  the  defendant.  The  second 
was  for  money  had  and  received  by  the  defendant  for  the  use  of  the 
plaintiff.  The  latter  count  contained  no  allegation  that  demand  had 
ever  been  made  upon  the  defendant  for  the  money.  The  defendant 
filed  a  general  demurrer  which  the  Court  sustained,  with  leave  to  the 
plaintiff  to  amend  his  complaint  upon  payment  of  costs.    The  plain- 


608  REixA  r.  CROSS.  [book  II. 

tiff  waived  his  right  to  iimviid.  and  agreed  that  judgment  might  be 
entered  against  him  upon  diiuurrtT,  and  from  the  rendition  of  such 
final  judgment,  plaintitf  appealed  to  this  Court. 

Robert  C.  and  Daniel  Rogers,  for  Appellant. 

Where  freight  is  paid  in  advance  on  a  contract  for  the  transporta- 
tion of  goods,  and  the  vessel  is  shipwrecked,  so  that  the  voyage  is 
broken  up,  the  master  or  owner  is  bound  to  refund  the  freiglit  so  ])aid, 
where  there  is  no  special  agreement  to  the  contrary.  Watson  r.  Duy- 
kinck,  3  Johns.  335;  Pitman  r.  Hooper,  3  Sumner,  50;  Griggs  v. 
Austin,  3  Pick.  20;  Mashiter  v.  Buelcr,  1  Campb.  84. 

The  opinion  of  the  Court  was  delivered  by  Mr.  Justice  Terry. 
Mr.  Justice  Heydexfeldt  concurred. 

This  action  was  brought  by  plaintiff  to  recover  from  defendant 
certain  money  advanced  on  a  contract  of  affreightment. 

The  complaint  alleges  that  defendant  contracted  to  carry  certain 
freight  from  the  port  of  Acapulco  to  Valparaiso,  in  consideration  of 
a  certain  sum  of  money,  a  portion  of  which  was  paid  by  plaintiff  in 
advance.  That  defendant  received  said  freight  on  board  his  vessel 
and  departed  on  the  voyage,  but  did  not  perform  his  contract,  because 
of  the  loss  of  said  vessel  at  sea. 

The  complaint  also  contains  a  second  count  for  money  received  to 
the  use  of  plaintiff.  To  this  complaint  defendant  demurred,  on  the 
ground  that  the  complaint  did  not  state  facts  sutlioient  to  constitute 
a  cause  of  action.  The  Court  below  sustained  the  di-murrer,  and 
judgment  was  rendered  in  favor  of  defendant.  From  this  judgment 
plaintiff  appealed. 

The  second  count  of  the  complaint  is  bad,  because  it  is  not  alleged 
that  demand  had  been  made  on  defendant.  A  party  receiving  money 
to  the  use  of  another,  is  rightfully  in  po.ssession  until  the  same  is 
demanded. 

The  only  question  involved  in  this  case  is,  the  riglit  of  plaintiff  to 
recover  advanced  freight  money  upon  the  non-performance  of  the 
contract  of  affreightment. 

The  general  rule  of  law  is,  that  when*  money  is  paid  by  on(>  jierson 
in  consideration  of  an  act  to  be  done  by  another,  and  the  act  is  not 
performed,  the  money  so  paid  may  be  recovered  back.  Contracts  for 
carrying  freight  form  no  exception  to  this  rule,  unless  by  express  stipu- 
lation of  the  parties. 

Chief  Justice  Ki;nt,  in  Wat.son  r.  Diiykinck,  .'<ays;  'The  general  rule 
undoubtedly  is.  that  freight  is  lost  unless  the  goods  are  carried  to  the 
port  of  destination.  The  rule  seems  also  to  go  further,  and  to  oblige 
the  ma.«ter,  in  case  of  shij)wreck,  to  restore  to  the  shi|)pcr  the  freight 
previously  advanced."  (See  :?  John.  '.VMK  and  cases  there  cited.)  The 
general  [)rinciple  undoubtedly  is.  "that  freight  is  n  compensation  for 
the  carriage  of  goods,  and  if  |)aid  in  advance,  and  the  goods  be  not 
carried  by  reason  of  any  event  not  imputable  to  the  shipper,  it  then 


CHAP.    II.]  WRIGHT    V.    NEWTON.  609 

forms  the  ordinary  case  of  money  paid  upon  a  consideration  which 
happens  to  fail."    Id.  p.  340. 

Chief  Justice  Pai{KE1{,  in  Griggs  v.  Austin,  3  Pick.  23,  says:  "It 
would  be  an  affectation  of  learning  to  go  over  the  ground  so  ably  pre- 
occupied in  the  opinion  given  in  that  case  (Watson  v.  Duykinck), 
especially  as  the  same  ground  has  been  traversed  by  Mr.  Justice  Story 
in  a  note  to  his  edition  of  Abbot  on  Merchant  Ships.  It  is  sufficient 
then  to  say,  that  by  reference  to  the  above  cited  opinion,  and  the  note 
of  Mr.  Justice  Story,  it  will  be  found  to  be  the  established  law  of  the 
maritime  countries  on  the  continent  of  Europe,  that  freight  is  the  com- 
pensation for  the  carriage  of  goods,  and  if  it  be  paid  in  advance,  and 
the^oods  be  not  carried  by  reason  of  any  event  not  imputable  to  the 
shipper,  it  is  to  be  re-paid,  unless  there  be  a  special  agreement  to  the 
contrary."  See  also  Samson  v.  Ball,  4  Dallas,  459 ;  Giles  v.  Brig 
Cynthia,  1  Pet.  Admr.  203;  Cheriot  v.  Barker,  2  John.  34G ;  Gillan  v. 
Simpkin,  4  Camp.  241;  Harris  v.  Kand,  4  X.  H.  259.  555;  3  Kent's 
Com.  226,  227. 

I  am  aware  that  there  are  decisions  of  the  English  Admiralty 
Courts,  which  seem  to  be  in  conflict  with  the  cases  cited ;  but  the 
weight  of  authority,  and  the  uniform  ruling  of  the  American  Courts, 
are  conclusive  as  to  the  right  of  the  shipper  to  recover. 

The  final  judgment  of  the  Court  below,  as  well  as  the  judgment 
sustaining  the  demurrer,  is  reversed  with  costs,  and  the  cause  re- 
manded.^ 


WEIGHT  V.  NEWTOX. 

Exchequer,  1835. 

[2  Crompton,  Meeson,  and  Roscoe.  124.] 

Assumpsit  for  money  had  and  received.    Plea,  non  assumpsit. 

At  the  trial  before  Aldersox,  B.,  at  the  last  Lancaster  assizes,  it 
appeared  that  the  defendant,  being  in  the  occupation  of  a  public-house, 
and  being  desirous  of  leaving  it,  entered  into  a  verbal  agreement  with 
the  plaintiff  for  the  sale  to  him,  on  behalf  of  a  Mrs.  Williams,  of  the 
good-will  and  fixtures  of  the  house,  at  the  sum  of  £120,  £50  of  which 
was  to  be  paid  on  the  ^londay  after,  if  the  landlord  consented  to  the 
change  of  tenancy,  and  on  payment  of  the  remainder  of  the  money 

*As  stated  in  the  text  of  the  principal  oases,  the  English  law  is  contra. 
See  De  Silvale  v.  Kendall  (1815)  4  M.  &  S.  37;  Allison  v.  Bristol  Marine 
Ins.  Co.  (1876)  L.  R.  1  App.  Cas.  200.  225;  Byrne  v,  Schiller  (1880)  L.  R. 
B  Ex.  319.     In  this  latter  case  Cockrirn,  C.  J.,  said: 

"It  is  settled  hv  the  authorities  referred  to  in  the  course  of  the  argument 
that  bv  the  law  of  England  a  payment  madp  in  advance  on  account  of  freight 


610  WRIGHT    I'.    NEWTON.  [BOOK    II. 

the  defendant  was  to  give  up  possession.  The  £50  was  paid  to  the 
defendant  on  the  10th  of  May,  and  on  the  20th.  on  application  being 
made  to  the  Landlord,  he  verbally  agreed  to  accept  Mrs.  Williams  as 
tenant.  In  consequence  of  this,  Mrs.  Williams,  for  whom  the  house 
had  been  taken  by  the  plaintiiT.  removed,  and  took  her  furniture  to 
the  defendant's  house,  and  went  to  reside  there,  and  continued  there 
for  five  or  six  weeks,  and  carried  on  the  business,  but  the  defendant 
and  his  wife  also  continued  to  reside  there.  It  appeared,  that,  on  the 
2d  of  June,  the  landlord  withdrew  his  consent  to  accept  Mrs.  Williams 
as  tenant.  The  defendant  on  being  informed  of  this,  said  that  Mrs. 
Williams  might  keep  his,  the  defendant's,  name  up,  and  he  would 
give  possession  in  spite  of  the  landlord.  Mrs.  Williams  subsequently, 
by  the  defendant's  consent,  took  away  her  furniture,  but  tlic  defendant 
refused  to  return  the  £50.  Tiie  defendant  afterwards  sold  the  good-will 
and  fixtures  to  another  person,  who  was  accordingly  let  into  posses- 
sion. This  action  was  brought  to  recover  back  the  sum  of  £50,  as 
money  had  and  received  for  the  use  of  the  plaintiff.  The  learned 
Bahox  left  it  to  the  jury  to  say  whether  the  parties  had  agreed  to 
rescind  the  contract,  and  if  they  were  of  that  opinion,  he  directed 
them  to  find  a  verdict  for  the  plaintiff ;  which  they  accordingly  did. 

CressweU  now  moved  by  leave  of  the  learned  Baron  to  enter  a  non- 
suit. 

Parke.  B.  It  seems  to  me  that  this  was  a  contract  with  a  condition 
that  the  landlord's  consent  should  be  obtained;  and  the  question  is, 
has  that  condition  been  performed?  There  was  a  deposit  of  £50 
made  upon  the  landlord's  agreeing  to  take  Mrs.  WilNams  as  tenant, 
but  the  remainder  of  the  money  not  having  been  paid,  and  Mrs.  Will- 
iams not  having  entered  into  possession  as  tenant,  the  landlord  sub- 
sequently withdrew  his  consent.  I  think  it  must  be  taken  as  if  the 
landlord  never  has  consented;  and  if  so,  the  condition  has  not  been 
performed.  There  would  be  nothing  to  bind  the  landlord  unless 
there  had  been  an  actual  transfer  of  the  possession.  The  money  was 
paid  on  a  consideration  which  has  failed,  and  therefore  the  plaintiff 
is  entitled  to  recover  it  back,  as  money  had  and  received  to  his  use. 
The  simple  question  is,  whether  the  hmdlord's  consent  of  the  19th  of 
May  was  binding  upon  him?  I  think  it  was  not,  and  therefore  the 
condition  was  not  performed.    There  must  be  no  rule. 

BoLLANO,  B.  The  consent  would  have  l)een  sullicieiit  if  Mis.  Will- 
iams had  acted  u|»oii  it  before  it  was  withdrawn,  by  paying  the  re- 
mainder of  the  purchase-money,  and  getting  into  possession  as  tenant. 

cannot  Uc  rrmvprpd  Imok  in  the  event  of  tlio  poods  being  lost,  and  the  freight 
therefore  not  heeoming  pnyahle.  I  regret  that  the  law  in  bo.  I  think  it 
founded  on  an  erroneous  principle  and  •mytliing  Iml  satisfactory;  and  I  am 
oinhohlened  to  say  this  hy  finding  that  the  .American  authorities  have  settled 
the  law  upon  directly  oj)posite  principles,  and  that  the  law  of  every  European 
country  is  in  eonfoiinity  t«»  tiie  .\nieri<'an  doctrine  and  contrary  to  ours." — Ed. 


CHAP.    11.]  FEllXS    V.    CARE.  611 

As  it  was  withdrawn  before  Mrs.  Williams  took  possession  as  tenant, 
I  think  that  the  verdict  was  right. 

Aldekson,  B.  I  think  that  the  defendant  never  gave  up  possession 
to  Mrs.  Williams  as  tenant.  He  kept  possession  of  the  house  for  a 
very  good  reason;  because  the  remainder  of  the  purchase-money  was 
not  paid. 

Rule  refused. 


FERNS  V.  CAER. 

Chancery  Division,  1885. 

\Law  Reports,  28  Chancery  Division,  409.] 

Articles  of  agreement,  dated  the  16th  of  Xovember,  1880,  were 
entered  into  between  Henry  Joseph  Carr,  a  solicitor,  of  the  one  part, 
and  Francis  Ferns,  the  Plaintiff,  and  his  son.  Harry  Clifford  Ferns, 
of  the  other  part,  by  which  Harry  Clifford  Ferns  was  bound  as  an 
articled  clerk  for  the  term  of  five  years  to  Henry  Joseph  Carr,  who, 
in  consideration  thereof,  and  of  £150  paid  him  by  the  Plaintiff, 
covenanted  to  receive  H.  C.  Ferns  as  his  clerk,  and  "that  the  said  //.  J. 
Carr  will,  by  the  best  ways  and  means  he  may  or  can,  and  to  the 
utmost  of  his  skill  and  knowledge  teach  and  instruct,  or  cause  to 
be  taught  or  instructed,  the  said  H.  C.  Ferns  in  the  said  practice  or 
profession  of  a  solicitor  which  the  said  H.  C.  Carr  now  doth  or  shall 
at  any  time  hereafter  during  the  said  term  use  or  practise,"'  and  at 
the  end  of  the  term  to  use  his  best  means  and  endeavors  to  procure 
H.  C.  Ferns  to  be  admitted  a  solicitor. 

Mr.  H.  J.  Carr  died  in  December.  1883.  He  had  no  partner,  and 
no  arrangements  were  made  that  Mr.  H.  C.  Ferns  should  complete 
his  articles  with  another  solicitor.  This  action  was  brought  by  Mr. 
Francis  Ferns  against  the  executors  of  Mr.  H.  J.  Carr.  The  Plaintiff 
claimed  the  return  of  a  proportionate  ])art  of  the  premium  of  £150 
and  in  the  alternative  damages  for  the  non-performance  of  the  agree- 
ment so  far  as  it  remained  unperformed.  The  action  was  heard  on 
summons  for  judgment  on  admissions. 

Decimus  Sturges,  for  the  Plaintiff: — 

This  case  is  exactly  the  same  as  Hirst  v.  Tolson,  3  Mac.  &  G.  134, 
which  has  been  recognised  in  Atwood  r.  Claude,  Law  Rep.  3  Ch.  369, 
375.  It  is  true  that  in  Whincup  v.  Hughes,  ibid.  6  C.  P.  78,  it  was 
held  that  no  part  of  an  apprenticeship  premium  was  returnable,  but 
in  that  case  the  master  was  not  a  solicitor,  and  T  submit  that  the 
reason  given  in  the  older  cases — E.r  parte  Prankerd,  3  B.  tS:  A.  357 ; 
ex  parte  Bayley.  9  B.  &  C.  691 — for  exercising  the  jurisdiction  in  the 
case  of  articled  clerks,  that  the  Court  has  a  peculiar  jurisdiction  over 


612  FERXS  v.    CAKK.  [BOOK  II. 

its  own  officers,  sometimes  styled  a  jiaternal  and  masterful  jurisdic- 
tion, is  sufficient  to  uphold  Hirst  r.  Tolson,  2  Mac.  &  G.  134.  Other 
old  authorities  are  Newton  r.  Rowse,  1  Vcrn.  4G0,  and  Unwin  v. 
Fawnt,  Finch,  144.  Tiie  contract  by  the  deceased  in  this  case  was 
binding  on  the  executors  to  cause  the  clerk  to  be  instructed  during 
so  much  of  the  term  as  was  unexpired  at  the  death  of  Mr.  Carr. 

Ingle  Joyce,  for  the  Defendants  : — 

Hirst  V.  Tolson  was  in  efft'ct  overruled  by  Wliincup  v.  Hughes. 
The  Judges  in  the  latter  case  were  unanimous  in  thinking  the  opinion 
of  Lord  Gotten  HAM  in  the  former  could  not  be  supported.  The 
ground  of  the  decision  was  not  that  there  was  any  difference  between 
a  solicitor  and  any  other  person,  so  far  as  his  contract  with  an 
apprentice  is  concerned.  On  principle,  the  Court  has  no  peculiar 
jurisdiction  over  a  solicitor  or  a  solicitor's  representatives  in  respect 
of  matters  outside  his  duties  as  solicitor. 

The  articles  contained  nothing  unusual,  nor  anything  to  impose  an 
obligation  to  find  a  successor  to  Mr.  Carr  as  master. 

The  clerk  in  this  case  has  had  the  full  benefit  of  the  premium  paid, 
having  been  instructed  for  three  years ;  the  time  has  arrived  when  the 
loss  from  the  determination  of  the  relationship  is  on  the  nuister's  side. 

Decinius  Sturges,  in  reply. 

Pearson,  J.  There  have  been  a  good  many  cases  in  the  books  on 
matters  of  this  kind.  It  would  seem  that  in  the  older  cases  even  the 
Courts  of  Law  have  interfered  between  solicitors  and-  their  clerks  to 
determine  wiietber  any  part  of  tlie  premium  ought  to  be  returned. 
One  of  the  earliest  ca.ses  cited  to  me  was  that  of  Ex  parte  Prankerd, 
3  B.  &  A.  257,  258.  In  that  case  an  apprentice  had  run  away  from 
service,  and  the  solicitor  refu.sed  to  take  him  back.  Chief  Justice 
Abbott  said:  "It  is  extremely  convenient  that,  in  cases  like  the  pres- 
ent, the  Court  should  exercise  a  summary  jurisdiction  for  adjusting 
disputes  between  the  officers  of  this  Court  and  their  clerks.  It  appears 
to  have  been  exercised  by  us  and  l)y  our  predecessors;  and  I  think  we 
ought  not  to  disturb  so  useful  a  j)ractice.  This  is  very  dilTerent  from 
the  case  cited  from  the  Exchequer.  Our  jurisdiction  here  depends  on 
the  authority  of  the  Court  over  its  own  officers."  Xow,  in  that  case,  the 
contract  had  not  come  to  an  end  by  the  death  of  either  party.  The 
next  case  was  the  case  of  E.r  parte  Hayley,  i)  B.  &  C.  (!!H.  There  an 
attorney  had  died,  and  Lord  Tkntkhden  says:  "I  am  of  oj)inion  that 
this  case  is  not  to  be  decided  l>y  ;iny  strict  rule  of  hiw.  The  Court 
exercises  a  jurisdiction  over  attorneys,  and  that  is  to  i)e  exercised 
accr»rding  to  law  and  conscience,  and  not  l)y  any  technical  rules;  and 
considering  the  circumstances  of  this  case,  and  the  effect  of  the  Act 
of  Parliament  which  prohibits  attorneys  from  having  more  than  a 
certain  number  of  clerks,  we  think  that  the  rcjiort  should  be  con- 
firmed. This  clerk  was  bound  to  one  only  in  name.  I)ut  in  reality  and 
in  conscience  he  was  bound  to  two:  he  was  to  be  instructed  by  the  two 


CHAP.    II.]  FERNS    V.    CARR.  613 

who  were  in  partnership  together;  and  they  caused  him  to  be  bound 
to  one,  instead  of  binding  him  to  the  two,  in  order  to  satisfy  the  Act 
of  Parliament,  and  enable  the  partners  to  liave  that  number  of 
clerks  which  they  could  not  otherwise  have  had  if  Bayley  had  been 
bound  to  the  two  instead  of  one  of  them.  In  conscience,  it  appears 
to  me  to  be  a  binding  to  the  two;  the  premium  was  paid  to  the  two; 
and  the  one  being  dead,  and  the  other  having  the  full  number  of 
clerks  which  the  law  allows  him,  and  not  being  able  to  retain  this 
young  man  in  his  service,  and  instruct  him  and  give  him  the  benefit 
for  which  he  paid  the  money,  I  think  he  who  is  the  survivor  is  bound 
to  refund  whatever  is  to  be  refunded."  Then  he  said  the  master 
had  found  a  sum,  and  that  ought  to  be  paid.  It  is  to  be  remarked 
on  the  judgment  in  that  case  that  the  opinion  of  the  Court  was  that 
although  the  bond  was  to  one  partner  only  the  clerk  was  bound  to 
the  firm  and  there  was  a  person  surviving  and  able  to  fulfil  the  con- 
tract with  him,  except  so  far  as  he  had  put  it  out  of  his  power  to 
take  another  clerk.  I  do  not  think  that  case  governs  the  present, 
because  in  the  present  it  is  admitted  that  there  is  no  person  who  can 
fulfil  the  contract. 

I  think  I  may  pass  over  the  other  cases  and  come  to  the  case  of 
Hirst  V.  Tolson,  2  Mac.  &  G.  IS-i,  which  is  hardly,  if  at  all,  to  be 
distinguished  from  the  present  case,  and  I  suppose  if  it  had  not  been 
commented  upon  in  a  later  case  cited  to  me  it  would  have  been  my 
duty  to  follow  it  and  decide  that  a  portion  of  the  premium  was  re- 
turnable. But  when  the  case  of  Hirst  v.  Tolson  was  most  carefully 
considered  by  the  Judges  in  the  Exchequer  Chamber,  in  Whincup  i'. 
Hughes,  Law  Hep.  6  C.  P.  78,  they  all  dissented  from  it,  considering, 
with  all  respect  to  Lord  Chancellor  Cottenham,  that  his  judgment 
was  wrong  and  saying  there  was  no  debt  at  law.  Now  if  there  is  no 
debt  at  law,  which  I  must  take  to  be  the  fact  on  the  authority  of 
that  case,  it  is  exceedingly  difficult  to  say  there  is  any  debt  in  equity, 
and  if  there  is  no  debt  in  equity  I  am  thrown  back  on  that  which  is 
said  to  be  the  paternal  and  masterful  jurisdiction  over  attorneys.  I 
must  say  I  do  not  understand  what  that  is.  I  quite  understand  it  put 
in  another  form,  that  every  one  who  is  a  solicitor  is  an  officer  of  the 
Court,  and  in  respect  of  his  conduct  as  such  the  Court  has  a  summary 
jurisdiction  which  it  exercises  in  a  manner  beneficial  both  to  solicitors 
and  others.  But  I  cannot  understand  how  there  can  be  a  paternal 
and  masterful  jurisdiction  which  can  enable  the  Court  to  say  that 
a  contract  between  a  solicitor  and  a  third  person  is  to  be  construed 
in  another  way  than  a  like  contract  between  other  persons,  and  that 
notwithstanding  the  contract  means  one  thing,  the  solicitor  is  to  do 
another  because  the  Court  thinks  it  more  honourable.  I  think  if  I 
were  so  to  hold  I  should  be  assuming  a  jurisdiction  to  enforce  a  code 
of  morals  not  written  and  not  to  be  found  definitely  stated  by  any 
authority,  and  should  be  making  the  rule  of  the  Court  to  vary,  as 


614  FERNS  V.    CAUR.  [BOOK  II. 

Lord  [John]  Seldex  (Selden,  Table  Talk,  title  Equity)  once  said  it 
did  vary,  according  to  the  length  of  the  foot  of  each  Lord  Chancellor. 
I  will  go  a  step  further  and  say  if  I  were  wrong  in  the  conclusion 
I  have  come  to,  if  1  were  to  disregard  the  strict  meaning  of  the 
contract.  I  should  have  great  difficulty  iii  saying  that  anything  ought 
to  be  returned  in  this  case.  At  least  I  should  come  to  the  conclusion 
that  it  ought  to  be  a  very  small  sum.  The  premium  was  £150;  during 
three  years  the  articled  clerk  has  had  the  benefit  of  the  solicitor's 
instruction,  and,  if  he  has  benefited  from  it  to  the  extent  to  which 
he  ought,  his  services  would  be  of  considerable  value  to  the  solicitor 
for  the  next  two  years.  And  1  very  much  doubt  whether,  upon  any 
consideration,  anything  would  be  returnable  except  a  very  small 
sum.  Under  all  the  circumstances,  though  not  without  some  doubt, 
because  of  the  authorities  cited,  I  think  I  must  come  to  the  con- 
clusion that  there  is  no  power  in  the  Court  on  a  contract  of  this  kind 
to  say  that  any  part  of  the  premium  ought  to  be  returned.^ 

'In  the  leading  case  of  Whincup  v.  Hughes  (1871)  L.  R.  6  C.  P.  78.  it 
appeared  that  the  plaintiff  apprenticed  his  son  to  a  watchmaker  and  jeweller 
for  the  term  of  six  years,  paying  a  premium  of  £25.  The  master  duly  in- 
structed the  apprentice  for  one  year,  and  then  died.  The  plaintiff  brought 
an  action  for  money  had  and  received  against  the  master'^ executrix  to  recover 
the  whole  or  some  part  of  the  premium  on  the  giound  of  failure  of  consider- 
ation. Tlie  court,  however,  refused  recovery  on  the  ground  tliat  there  was  only 
partial  not  a  total  failure  of  consideration. 

The  following  two  cases  concerning  the  riglits  and  status  of  members  of  the 
legal  profession,  may  be  of  interest.  In  Coe  v.  Smith  (1853)  4  Ind.  79,  an 
attorney  engaged  to  defend  a  cause  for  $500,  but  died  before  the  suit  was 
deteniiincd.  His  administrator  was  allowed  on  a  quantum  meruit,  the  amount 
— $175 — which    the    intestate's   .services  were  really  worth  to  the  client. 

In  McCammon  r.  Peck  (1895)  9  Oh.  Ct.  Ct.  5S'.).  tlic  sum  of  $1500  was  paid 
in  advance  to  J.  M.  Jordan,  a  distinguished  attorney  of  Cinciiiiiati,  to  carry  a 
case  to  final  determination.  After  performing  services  of  tlie  admitted  value  of 
$250,  Jordan  died,  and  the  client  brought  suit  to  recover  the  unearned  portion 
of  the  fee.  The  Circuit  Court  permitted  recovery,  in  what  would  seem  to  be  an 
unanswerable  opinion;  but  on  apjieal,  the  judgment  was  reversed,  without 
opinion  l)y  the  Supreriie  ('r)»irt,  evidently  acting  on  the  advice  of  Lord  Man.s- 
FIEI.D  to  "decide  j)romptly,  but  never  give  any  reasons  for  your  decisions.  Your 
decisions  may  be  right  but  your  reasons  are  sure  to  l)e  wrong."  The  two  cases 
are  one  in  principle,  and  recovery  shoiild  have  l)een  permitted  in  the  latter  as 
well  as  in  the  former.  In  both  instances,  however,  the  courts  stood  by  the  pro- 
fession.— Fa). 


CHAP.    II.]  KNOWLES    V.    BOVILL   AND   ANOTHER.  615 

KNOWLES  V.  BOVILL  AXD  ANOTHER. 

Exchequer,  1870. 

[22  Law  Times  Reports,  70.] 

The  plaintiff  was  the  holder  of  a  license  to  use  a  certain  patented 
invention  from  the  patentee.  The  patentee  intending  to  apply  for  a 
prolongation  of  this  patent,  and.  also  for  a  patent  for  a  new  inven- 
tion of  a  similar  description,  the  plaintiff  agreed  to  give  him  £150 
for  the  free  use  forever  of  the  former  patent,  as  well  as  for  the  free 
use  for  three  years  of  the  new  patent  which  the  patentee  was  about 
to  take  out.  The  £150  was  paid  to  the  patentee,  but  he  died  almost 
immediately  afterwards,  and  in  consequence  of  his  death  no  appli- 
cation was  ever  made  for  a  renewal  of  the  former  patent,  or  the 
grant  of  one  for  the  new  invention.  The  plaintiff  brought  an  action 
against  the  patentee's  executors  to  recover  back  the  £150,  on  the 
ground  that  the  consideration  of  it  had  totally  failed.^ 

The  question  for  the  court  was,  whether  the  phiintiff  was  entitled  to 
the  return  of  the  £150. 

Martin,  B.  In  my  opinion  the  plaintiff  is  entitled  to  our  judg- 
ment. The  true  test  in  this  case  is  the  question,  What  did  he  buy? 
In  my  opinion  he  bought  an  application  for  the  grant  of  one  patent 
and  the  prolongation  of  the  other.  By  the  contract  he  was  to  take  the 
chance  of  the  failure  or  success  of  such  application.  But  what  he 
bought  was  an  application.  The  result  is  that  the  consideration  in 
this  case  wholly  fails,  because  it  is  admitted  such  application  never 
was  and  now  never  will  be  made.  The  law  in  some  cases  implies  a 
contract  when  the  parties  have  not  expressly  made  one.  In  cases  of 
the  total  failure  of  consideration  for  a  simple  contract,  it  implies  a 
contract  to  repay  the  money  which  has  been  paid  for  the  consideration 
that  has  so  failed.  If  I  thought  Mr.  Garth's  contention  were  correct, 
and  that  plaintiff  only  bought  the  chance  whether  an  application 
would  be  made  and  prove  successful,  the  case  might  be  different,  but  I 
do  not  think  that  is  the  true  meaning  of  the  contract. 

Bramwell,  B.  I  am  of  the  same  opinion.  The  plaintiff  manifestly 
paid  his  money  for  the  right  to  have  an  application  made  for  the  re- 
newal of  the  one  patent  and  the  granting  of  the  other.  It  cannot  be 
doubted  that  if  Mr.  Bovill  had  lived  and  no  application  had  been 
made,  the  plaintiff  would  have  been  entitled  to  recover  his  money. 
From  this  it  is  perfectly  clear  he  bought  the  right  to  have  such  appli- 
cation made.  In  point  of  fact  it  was  not  made.  Then  why  is  his 
claim  not  well  founded?    ^Ir.  Garth  invokes  a  rule  of  law;  he  claims 

*The  head-note  is  substituted  for  the  elaborate  statement  of  the  report,  and 
arguments  of  counsel  are  omitted. — Ed. 


616  LlKi:    HT    Al,.    C    LYDE.  [bOOK    II. 

to  read  such  a  contract  with  a  qiialificatiou  implied  by  hiw  that  Mr. 
Bovill  is  only  bound  to  make  such  application  if  he  lives;  he  is  to  be 
excused  bv  death.  Mr.  Quain  may  fairly  say  then,  "I  am  entitled  to 
add  a  qualification  to  that  qualification,  viz.,  that  if  he  dies  the  money 
shall  be  returned."  I  am  strongly  of  opinion  that  the  law  ought  never 
to  implv  terms  in  a  contract  unless  the  justice  or  necessity  of  the  case 
obviously  and  imperatively  demands  it.  But  if  a  party  contends  that 
there  is  such  a  qualification  when  the  engagement  is  of  a  personal 
character,  how  can  he  object  to  the  qualification  being  qualified  as  I 
have  pointed  out?  Can  anything  be  more  obviously  just  and  reason- 
able? Why  should  the  contractor's  death  be  a  benefit  to  his  estate, 
and  inflict  a  loss  on  the  other  party?  In  such  a  case  the  court  only 
introduces  a  term  which  it  is  satisfied,  not  perhaps  that  the  parties  in- 
tended, but  that  they  would  have  intended  if  they  had  contemplated 
the  circumstances  which  have  arisen. 

PiGOTT,  B.  I  am  of  the  same  opinion.  It  is  quite  clear  that  the  in- 
tention of  the  parties  was  that  there  should  be  an  application  for  these 
patents,  and  that  such  application  formed  the  consideration  for  the 
payment  of  the  money.  There  never  was  any  such  application,  and 
consequently  the  consideration  wholly  failed. 

Cleasby,  B.  It  is  clear  that  what  plaintiff  bought  was  the  chance 
of  Mr.  Bovill  being  successful  in  his  application  or  not,  not  the  chance 
of  his  making  it  or  not;  that  would  have  left  it  in  his  option  to  make 
it  or  not,  whereas  it  was  admitted  if  he  had  lived  and  not  made  it  the 
plaintiff  would  have  recovered.* 

Judgment  for  plaintiff. 


(2)    The  I'hiintiff  I'Uads  Impossibility. 

LUKE  etnl  r.  LVDE. 

King's  Bench,  1759. 

[2  Burrow,  882.] 

A  SPECIAL  case  from  tlie  last  Devonshire  assizes;  reserved  by  Lord 
Mansfikli).  who  went  that  circuit  lasf  summer. 

The  defendant  Lyde  sbipped  a  cargo  of  l.")!)!  (|uintMls  of  fish,  at  fhe 
port  of  St.  John  in  Newfoundland,  on  board  tlie  ship  "Sarah."  be- 
longing to  the  plaintifTs,  fo  be  carried  to  Usbon.  The  plaintiffs  were 
to  l)e  paid  freight,  at  the  rate  of  two  shillings  per  quintal.  The  orig- 
inal price  of  the  said  cargo  was,  at  Xe\vrniiiHll;iiid,  fen  shillings  and 
sixpence  sterling  per  quintal. 

The  plaintiffs  had  also  on  hoard  flic  said  "Sarah,"  a  cargo  of  945 
quintals  of  fish,  whidi  was  tln-ir  own  property. 

•Compare  Taylor  r.  \\:\ro   (IHO.^))    1   1'..  &   V.  N.  11.  2G0,  ante,  428.— Ed. 


CHAP.    11.]  LUKE    ET    AL.    V.    LYDE.  G17 

The  ship  sailed  from  the  port  of  St.  John  on  27th  November,  1756, 
and  had  proceeded  seventeen  days  on  her  voyage,  and  was  taken  on 
the  14th  of  December  following,-  within  four  days'  sail  of  Lisbon,  by 
a  French  ship.  And  the  captain,  the  other  otlicers,  and  all  tlie  crew 
(except  one  man  and  a  boy)  were  taken  out  of  the  "Sarah"  and  put 
on  board  the  French  ship.  The  ship  "Sarah"  was  retaken  on  the  17th 
of  the  same  December,  1756,  by  an  English  privateer;  and  on  the  29th 
of  December,  1756,  brought  into  the  port  of  Biddeford  in  Devonshire. 

The  plaintiffs,  having  insured  the  ship  and  their  part  of  the  cargo, 
abandoned  the  same  to  the  insurers.  But  the  freight,  which  the  own- 
ers were  entitled  to,  was  not  insured. 

The  defendant  had  his  goods  of  the  recaptors,  and  paid  them  5s.  per 
quintal  salvage,  at  the  rate  of  10s.  per  quintal  value. 

The  fish  could  not  be  sold  at  all  at  Biddeford,  nor  at  any  other  port 
in  England,  for  more  than  10s.  per  quintal,  clear  of  all  charges  and 
expenses  in  bringing  them  to  such  port.  And  the  most  beneficial 
market  (in  the  apprehension  of  every  person)  for  disposing  of  the 
said  cargo  of  fish,  was  at  Bilboa  in  Spain,  to  which  place  the  defend- 
ant sent  it  in  the  March  following;  and  there  was  no  delay  in  the  de- 
fendant in  sending  the  said  cargo  thither.  And  it  was  sold  there  for 
5s.  6d.  per  quintal,  clear  of  the  freight  thither,  and  of  all  expenses  at- 
tending the  sale  there. 

The  freight  from  Biddeford  to  Lisbon  is  higher  than  from  New- 
foundland to  Lisbon. 

From  the  time  of  the  capture,  the  whole  way  that  the  ship  was 
afterwards  carried  was  out  of  the  course  of  her  voyage  to  Lisbon. 

The  question  was,  "Whether  ihe  plaintiffs  are  entitled  to  any,  and 
what  freight,  and  at  what  rate,  and  subject  to  what  deduction?" 

Mr.  Husseij  for  the  plaintiffs. 

Mr.  Gould  for  the  defendant. 

Lord  Mansfield  said.  That  though  he  was  of  the  same  opinion  at 
the  assizes  as  he  was  now,  yet  he  was  desirous  to  have  a  case  nuide  of 
it,  in  order  to  settle  the  point  more  deliberately,  solemnly,  and  noto- 
riously, as  it  was  of  so  extensive  a  nature ;  and  especially,  as  the  mari- 
time law  is  not  the  law  of  a  particular  country,  but  the  general  law  of 
nations:  "non  crit  alia  lex  EomfP,  alia  Athenis ;  alia  nunc,  alia 
posthac ;  sod  et  apud  omnes  gentes  et  omni  tempore,  una  eademque  lex 
obtinebit." 

He  said,  he  always  leaned  (even  where  he  had  himself  no  do\ibt)  to 
make  cases  for  the  opinion  of  the  court ;  not  only  for  the  greater  satis- 
faction of  the  parties  in  the  particular  cause,  but  to  prevent  other  dis- 
putes, by  making  the  rules  of  law  and  the  ground  upon  which  they 
arc  established  certain  and  notorious:  but  he  took  particular  care  that 
this  should  not  create  delay  or  expense  to  the  parties,  and  therefore 
he  always  dictated  the  case  in  court  and  .saw  it  signed  by  counsel,  be- 
fore another  cause  was  called;  and  always  made  it  a  condition  in  the 


G18  LUKE    ET    AL.    l\    LYDE.  [liOOK    11. 

rule,  "that  it  should  be  set  down  to  be  argued  within  the  first  four 
days  of  the  term."  Upon  the  same  principle,  the  motion  "to  put  off 
the  argument  of  this  case  to  the  nyxt  term,"  was  refused ;  and  the 
plaintiff  will  now  have  his  judgment  within  a  few  days,  as  .soon  as  he 
could  have  entered  it  uj)  if  no  case  had  been  reserved,  at  the  expense 
of  a  single  argument  only ;  and  some  rules  of  the  maritime  law,  ap- 
plicable to  a  variety  of  cases,  will  be  better  known.  lie  said,  before 
he  entered  into  it  particularly,  he  would  lay  down  a  few  i)rinciples, 
viz. :  — 

If  a  freighted  ship  becomes  accidentally  disabled  on  its  voyage 
(without  the  fault  of  the  master),  the  master  has  his  option  of  two 
things;  either  to  refit  it  (if  that  can  be  done  with  convenient  time),  or 
to  hire  another  ship  to  carry  the  goods  to  the  port  of  delivery.  If  the 
merchant  di.sagrees  to  this,  and  will  not  let  him  do  so,  the  master  will 
be  entitled  to  the  whole  freight  ot  the  full  voyage.  And  so  it  was  de- 
termined in  the  House  of  Lords,  in  that  case  of  Lutwidge  &  How  v. 
Grey  ct  al. 

As  to  the  value  of  the  goods,  it  is  nothing  to  the  master  of  the  ship 
"whether  the  goods  arc  sj)oiled  or  not."  Provided  the  freighter  takes 
them,  it  is  enough  if  the  nuister  has  carried  them ;  foi-  l)y  doing  so  he 
has  earned  his  freight.  And  the  merchant  shall  be  obliged  to  take  all 
that  are  saved,  or  none;  he  shall  not  take  some,  and  abandon  the  rest, 
and  so  pick  and  choose  what  he  likes,  taking  that  wbi(]\  is  not  dam- 
aged, and  leaving  that  which  is  spoiled  or  damaged.  11*  he  abandons 
all,  he  is  excused  freight;  and  he  may  abandon  all,  tliougb  lliey  are 
not  all  lost.  (I  call  the  freighter  the  mercbaiit.  and  the  other  the 
master,  for  the  clearer  distinction.) 

Now  here  is  a  capture  without  any  fault  of  the  master,  and  then  a 
reeaj>tiire.  The  merchant  does  not  abandon,  but  takes  tlie  goods,  and 
does  not  require  the  master  to  carry  them  to  Lisbon,  the  port  of  deliv- 
ery. Indeed,  the  master  could  not  carry  thern  in  tlie  same  ship,  for 
it  was  disabled,  and  was  itself  abandoneil  to  the  insurers  of  it;  and  he 
would  not  desire  to  find  another,  because  the  freight  was  higher  from 
Biddeford  to  Lisbon,  than  from  Newfoundland  to  Lisbon. 

There  can  bo  no  doubt  but  that  .some  freight  is  due,  for  the  goods 
were  not  abandoned  i)y  the  freighter,  but  received  by  him  of  the  re- 
ca[»tor. 

The  (juestion  will  Im-  "what  freight?" 

The  answer  is  "a  ratable  freight,"  i.  e.,  pro  rnin  ilinrris. 

If  the  master  has  bis  election  to  |)rovide  another  .ship  to  carry  the 
goods  to  the  port  of  delivery,  and  the  merchant  does  not  oven  desire 
him  to  do  so,  the  master  is  still  entitl<'il  to  a  projjortinn,  pro  ruin,  of 
the  former  part  of  the  voyage. 

I  take  the  proportion  of  the  salvage  here  to  In-  half  of  the  whole 
cargo,  upon  the  state  of  the  rase  as  here  ngrei-d  upon.  .\nd  it  is  rea.son- 
ahle  that  tin-  half  here  paid  to  the  recajjtor  should  be  considered  as 


ClIAl'.    11.]  LUKH    1:T    AL.    IK    LYDE.  G19 

lost.  For  the  recaptor  was  not  obliged  to  agree  to  a  valuation,  but  he 
might  have  had  the  goods  actually  sohl,  if  he  had  so  pleased,  and  taken 
half  the  produce;  and  therefore  the  half  of  them  are  as  much  lost  as 
if  they  remained  in  the  enemy's  hands.  So  that  half  the  goods  must 
be  considered  as  lost,  and  half  as  saved. 

Here  the  master  had  come  seventeen  days  of  his  voyage,  and  was 
within  four  days  of  the  destined  port  when  the  accident  happened. 
Tlierefore  he  ought  to  be  paid  his  freight  for  17/21  parts  of  the  full 
voyage,  for  that  half  of  the  cargo  which  was  saved. 

I  find  !)y  the  aneientest  laws  in  the  world  (the  Khodian  laws),  that 
the  master  shall  have  a  ratable  proportion,  where  he  is  in  no  fault. 
And  Consolato  del  Mere,  a  Spanish  book,  is  also  agreeable  thereto. 
Ever  since  the  laws  of  Oleron,  it  has  been  settled  thus.  In  the  Usages 
and  Customs  of  the  Sea  (a  French  book),  with  observations  thereon, 
the  fourth  article  of  the  Laws  of  Oleron  is,  "That  if  a  vessel  be  ren- 
dered unfit  to  proceed  in  her  voyage,  and  the  mariners  save  as  much 
of  the  lading  as  possibly  they  can ;  if  the  merchants  require  their 
goods  of  the  master,  he  may  deliver  them,  if  he  pleases,  they  paying 
the  freight  in  proportion  to  the  part  of  the  voyage  that  is  performed, 
and  the  costs  of  the  salvage;  but  if  the  master  can  readily  repair  his 
ship,  he  may  do  it,  or  if  he  pleases,  he  may  freight  another  ship  to  per- 
form his  voyage."  Amongst  the  observations  thereon,  the  first  is,"that 
this  law  does  not  relate  to  a  total  and  entire  loss,  but  only  to  salvage; 
or  rather,  not  to  the  shipwreck,  but  to  the  disabling  of  a  ship,  so  that 
she  cannot  proceed  in  her  voyage  without  refitting;  in  which  ease  the 
merchants  may  have  their  goods  again,  paying  the  freight  in  propor- 
tion to  the  way  the  ship  made." 

The  observation  adds  further,  "That  if  the  master  can,  in  a  little 
time,  refit  his  vessel  and  render  her  fit  to  continue  her  voyage  (that  is, 
if  he  can  do  it  in  three  days'  time  at  the  most,  according  to  the  Hanse- 
Town  laws),  or  if  he  will  himself  take  freight  for  the  merchandise 
aboard  another  ship,  bound  for  the  same  port  to  which  he  was  bound, 
lie  may  do  it;  and  if  the  accident  diil  ii<it  happen  him  by  any  fault  of 
his,  then  the  freight  shall  be  paid  hiiu."  The  thirty-seventh  article  of 
the  Laws  of  Wislmry  is  to  the  very  same  purport. 

Eoccius  de  Xavibus  et  Xnulo,  in  note  eighty-first,  says:  "Declara 
hoc  dictum.  Ubi  nauta  munero  vohendi  in  parte  sit  functus,  quia 
tunc  pro  parte  itineris  quo  merces  inventfe  sint,  vecturam  del)eri 
anpiitas  suadet ;  et  ]iro  ea  rata  mercedis  solutio  fieri  debet.  Ita  Paul 
de  Castro,  etc."  (Then  a  string  of  authorities  follows.)  "Et  probat 
Joannes  de  Evia,  etc. ;  qui  hoc  extendit  in  casu  quo  merces  fuerint 
de])erdita?  (totally  lost)  una  cum  navi,  et  certa  pas  ipsarum  mer- 
cium  postea  fuerit  salvata  et  recuperata ;  tunc  naulum  deberi  pro  rata 
niercium  recuperatarum,  et  pro  rata  itineris  usque  ad  locum  in  quo 
casus  adversus  accidi'rat.  fundat.  etc."  (And  then  he  goes  on  with 
authorities.)     "Item  declara,  quod  si  dominus  seu  magister  navis  sol- 


G20  LUKE    ET    AL.    l\    LYDE.  [BOOK   II, 

verit  mercatori  pretiuin  iiu'rcium  deperditanini,  tunc  tcnetur  raer- 
cator  ad  solutionoin  nauli;  (|uia  iiutcc's  iK.hcutur  ac  si  salvatee  fuis- 
sent." 

In  another  book  entitled  The  Ordinance  of  Lewis  the  XIV.,  estab- 
lislied  in  1G81  (collected  and  compiled  under  the  authority  of  M.  Col- 
bert), the  same  rules  are  laid  down,  particularly  in  the  eighteenth, 
nineteenth,  twenty-first,  and  twenty-second  articles.  Article  eigh- 
teenth directs.  That  no  freight  shall  be  due  for  goods  lost  by  ship- 
wreck, or  taken  by  pirates  or  enemies.  Article  nineteenth  is,  That  if 
the  ship  and  goods  l)e  ransomed,  the  master  shall  be  paid  his  freiglit 
to  the  place  where  they  were  taken;  and  he  shall  be  paid  his  whole 
freight,  if  he  conduct  them  to  the  place  agreed  on,  he  contributing 
towards  the  ransom.  (Article  twentieth  settles  the  rate  of  contribu- 
tion.) Article  twenty-first,  The  master  shall  likewise  be  paitl  the 
freight  of  goods  saved  from  shipwreck,  he  conducting  them  to  the 
place  appointed.  Article  twenty -second,  If  he  cannot  find  a  ship  to 
carry  thither  the  goods  preserved,  he  shall  only  be  paid  his  freight  in 
proportion  to  what  he  has  performed  of  the  voyage. 

And  the  case  in  the  House  of  Lords  between  Lutwidge  &  How  v. 
Gray  et  al.  is  also  in  point,  and  was  well  considered  there.  And  Lord 
T.VLBOT  gave  the  reasons  of  the  judgment  of  the  House,  at  length. 

Therefore  in  the  present  case,  a  ratal)le  proportion  of  freight  ought 
to  be  paid  for  half  the  goods. 

It  is  quite  immaterial  what  the  merchant  made  of  the  goods  after- 
ward, for  the  master  hath  nothing  at  all  to  do  with  the  goodness  or 
batlness  of  the  market;  nor  indeed  can  that  be  properly  known  till 
after  the  freight  is  paid,  for  the  uuister  is  not  bound  to  deliver  the 
goods  till  after  he  is  paid  bis  freight.  No  sort  of  notice  was  taken  of 
that  nuitter  in  the  case  of  Lutwidge  &  How  v.  Gray,  in  the  House  of 
Lords;  and  yet  there  the  tobacco  was  damaged  very  greatly,  even  so 
much  that  a  great  part  of  it  was  burnt  at  the  scales  at  Glasgow. 

Therefore  the  verdict  must  be  for  £(!()  1  Is.,  which,  upon  coiiiijuta- 
tion,  amounts  to  the  ratable  proportion  of  tbc  freight,  being  17/21  of 
£7.',,  the  half  of  I'lr.O. 

('ons('(|U('iilly,  the  vcnlict  which  was  for  i'TO,  nnist  be  set  rigid,  and 
made  t<in  l  l.s.'  /.d  llw  poslrtt  he  tlrlirrrcd  lo  llir  pidinliff. 

'Oi  thin  rlccixion  Cliancollor  Kknt  hsivh:  "Lord  Mansfifim,  :it  ii  very  onily 
period  of  liix  judiciiil  life,  introduced  to  tlio  notice  of  tiie  Kn;.'lisli  liar  the 
R)iodian  Laws,  flie  Constilafo  del  Mare,  tlio  laWH  of  Oloron,  the  treatises  of 
llocciis,  the  laws  of  W'ishiiy,  and,  ahov*-  all.  thfi  marine  ordinances  of  Louis 
XIV.,  anrl  the  cojninentary  of  X'alin.  'i'liese  atilhoritios  were  cited  hy  him  in 
Luke  r.  F^y<le,  and  from  that  tiriK-  n  new  direction  waH  jjiven  to  Enf,dish  stiidioH, 
and  now  vi>;or  and  more  liberal  and  enlarp'd  viowH  rommunicated  to  forensic 
invcHtijrntions"   (3  C'f)nunentarips.  ID). 

Mr.  Carver  in  his  ''nrriap-  of  Coods  hy  Sea  (4th  od.)  §  .'iCO.  snya:  "It  may 
be  doubted  whether  the  ;;roundH  (,'iven   for  this  dcci.sion    [Luke  v.  LydeJ    can 


CHAP.    II.]  MACKRELL   V.    SIMOND    &    HANKEY.  621 

MACKRELL  v.  SIMOND  &  HANKEY. 

King's  Bench,  1776. 
[Ahhott  oil  Shipping   {oth  Ed.),  333.^] 

In  an  action  of  covenant  on  the  charter-party,  in  the  first  count  oi' 
whicli  the  phiintill'  claimed  freight  for  the  period  of  the  voyage  to 
Grenada;  in  the  second  up  to  the  day  of  loss  of  the  ship.  The  de- 
fendants demurred.  Judgment  was  given  for  the  plaintiff  on  the  first 
count,  and  for  the  defendant  on  the  second. 

MackreU,  the  owner  of  a  ship  called  the  Richard,  lying  in  tlie  river 
Thames,  let  his  ship  to  freight  by  a  charter-party,  dated  9th  March, 
1774,  to  Simond  &  another  "by  the  month,  for  such  time  as  she  should 
be  employed  in  performing  a  voyage  from  London  to  PlyniQuth,  and 
the  island  of  Grenada,  and  from  thence  back  to  London,"  whereby  the 
plaintiff  covenanted,  "that  the  ship  should,  pursuant  to  the  orders  and 
directions  of  the  freighters,  their  factors  or  assigns,  prosecute  and  per- 
form the  voyage  above-mentioned,  (the  dangers  and  perils  of  the  sea, 
and  the  restraint  of  princes  and  rulers  excepted),  and  should  in  such 
outward  and  homeivard  voyage  load  and  unload  all  lawful  goods:"  and 
that  his  ship's  company  and  boats  should  aid  and  assist  in  unloading 
and  reloading  the  said  ship's  cargoes  as  customary  at  the  island  of 
Grenada,  and  that  he  would  ):)ay  all  port-charges  and  pilotage.     In 

now  be  regarded  as  satisfactory."     And  see  Judge  Iveenek's  adverse  criticism 
from  the  standpoint  of  quasi-contracts  in  his  Treatise,  253. — Ed. 

'In  the  preface  to  the  first  edition  of  Abbott  on  Shipping  ( 1802)  the  learned 
author,  later  Lord  Chief  Justice  of  the  King's  Bench,  said:  "The  case  of 
Mackrell  against  Simond  and  Hankey  was  communicated  to  me  by  the  late 
Mr.  Justice  Buller,  who,  when  at  the  bar,  argued  it  on  behalf  of  the  defend- 
ants." 

But  in  Appleby  v.  Dods  (1807)  8  East.  300,  Lord  Ellenborovgu  refused 
a  recovery  for  wages  on  outward  because  the  vessel  was  lost  on  the  homeward 
voyage.  It  is  true  that  the  contract  provided  for  pa^nuent  only  upon  return  to 
home  port,  but  inasmuch  as  freight  was  earned  upon  the  outward  voyage,  and 
freight  is,  or  rather  was,  the  mother  of  wages,  there  was  a  fund  out  of  which 
the  wages  could  have  been  paid,  and  the  seaman's  labor  had  either  added  to  or 
created  this  fund.  .\(1d  to  this  the  fact  that  the  express  clause  about  pay- 
ment was  inserted  to  lucveiit  desertion  in  the  West  Indies,  and,  the  seaman's 
right  to  recovery  see;..s  too  plain  for  arg\iment. 

At  the  present  day  the  rule  that  freight  is  the  motlicr  of  wages  is  expressly 
abrogated  in  the  United  States  (  Rev.  St.  V.  S.  §  4.'v2."i)  and  in  case  of  the 
loss  of  vessel,  the  seaman  is  entitled  to  wages  earned  until  time  of  such  loss 
(Rev.  St.  U.  S.  §  4526).  For  Englisli  and  American  law  on  this  subject  and 
citation  of  authorities,  see  25  Am.  &  Eng.  Encyc.  of  Law  (2d  ed.)  96  et  scq. — 
Ed. 


622  MACKRELL    V.    SIMOND    ^    IIAXKKY.  [BOOK    II. 

consideration  whereof,  the  defendants  covenanted  that  they  "would 
load  and  unload  the  ship,  and  give  the  master  proper  orders  in  n.'spect 
thereof:  and  that  the  ship  should  be  discharged  out  of  her  said 
monthly  employ  on  the  delivery  of  her  homeward  cargo  in  London. 
and  also  should  and  would  well  and  truly  pay  or  cause  to  be  paid  to 
the  said  owner,  his  executors,  administrators,  or  assigns,  in  full  for  the 
freight  and  hire  of  the  said  ship  at  the  rate  of  £110  sterling  per  calen- 
dar month,  for  all  such  time  as  the  said  ship  should  be  taken  up  in 
performing  the  voyage  aforesaid,  to  commence  and  be  accounted  from 
the  day  of  the  date  of  the  said  charter-party,  and  to  end  and  determine 
on  the  day  of  the  discharge  of  the  homeward  cargo  at  London,  and  to 
be  paid  one-third  part  thereof  on  lier  report  inwards  at  the  Custom- 
house, London,  and  the  remaining  two-third  parts  thereof  in  two  cal- 
endar months  then  next  following." 

In  pursuance  of  this  charter-party,  the  ship  took  in  goods  belong- 
ing to  the  merchants  Simond  t(-  Ilankry  at  London,  sailed  with  them 
to  Plymouth,  and  there  took  in  other  goods  belonging  to  them,  and 
from  thence  proceeded  to  Grenada,  and  there  landed  the  cargo;  and 
received  anotlier  cargo  from  the  merchant's  factor  there,  with  which 
she  set  sail  for  London;  but  on  the  way  was  lost  by  tempest.  The  voy- 
age to  Grenada  occupied  three  months;  and  five  months  elapsed  in  the 
whole  before  the  loss  of  the  ship:  after  the  misfortune  the  owner 
brnuglit  an  action  against  the  mercluints,  claiming  of  them  the  pay- 
ment of  freight  either  for  three,  or  for  five  months.  The  merchants 
insisted  that  nothing  was  due.  The  Court  decided  that  freight  was 
payable  for  three  months,  the  period  of  the  outward  voyage. 

And  Lord  ilAXSFiELD  delivered  his  judgment  to  the  following 
effect:  "This  question  depends  upon  the  construction  of  the  cliarter- 
party.  If  the  parties  have  expressed  their  meaning  defectively, 
the  Court  must  be  guided  by  the  nature  of  the  thing.  The  char- 
ter-party puts  no  case  but  that  of  a  )>rosperous  voyage  out  and 
home;  it  provides  for  freight  on  the  supposition  that  the  ship  will 
arrive  safe  and  n'i)ort  her  cargo;  no  provision  is  made  for  any 
other  case.  If  the  ship  be  cast  away  on  the  coast  of  England,  and 
never  arrive  at  the  port  of  London,  yet  if  the  goods  arc  saved,  freight 
shall  be  paid,  l)ecause  the  nitTchant  receives  advantage  from  the  voy- 
age. This  is  not  expressed  by  the  charter-party,  but  arises  out  of  the 
equity  of  the  case.  Freight  is  the  motlier  of  wages,  tlie  safety  of  the 
ship  the  mother  of  freight:  that  is  the  gem-rai  rule  of  tlie  maritime 
law.  If  there  l)e  one  entire  voyage  otit  and  in,  and  the  sliip  be  cast 
away  on  the  homeward  voyage,  no  freight  is  due,  no  wages  are  due, 
because  the  whole  profit  is  lost ;  and  by  express  agreement  the  parties 
may  nuike  the  outward  and  hojueward  voyage  one.  Nothing  is  more 
common  tlian  two  voyages;  wherever  there  nrc  two  voyages,  iind  one 
is  performed,  and  the  ship  is  lost  in  the  homeward  voyage,  freight  is 
due  for  the  first.     Here  the  outward  and  homeward  voyage  are  eo 


CHAP.    II.]  UICIIAUDSON    ET   AL.    t'.    YOUNG    ET    AL.  623 

t 

called  in  the  charter-party.  The  cargo  is  loaded  outwards,  and  the 
owner  covenants  to  pay  port-chargos  on  the  outward  voyage.  The 
whole  of  that  voyage  was  completed:  port-duties  are  incurred  and 
paid.  Nothing  however  is  due  on  the  homeward  voyage,  though  the 
ship  might  be  out  a  month." 


KICHARDSON  ET  AL.  v.  YOUNG  ET  AL. 

Supreme  Court  of  Pennsylvania,  1861. 

[28  Pennsylvania  State,  169.] 

'Certificate  ♦from  the  Court  of  Nisi  Prius. 

This  was  a  foreign  attachment  by  John  G.  Eichardson  and  Joseph 
Eichardson,  trading  as  Eichardson  Brother  &  Co.,  against  Stephen 
Young  Smith,  C.  Cox,  and  Horatio  Stevens,  in  which  Stephen  Bald- 
win &  Co.  were  summoned  as  garnishees. 

The  plaintiffs  filed  tl\cir  declaration  in  assumpsit,  containing  two 
counts,  one  for  money  had  and  received  by  defendants  for  the  use 
of  plaintiffs,  and  the  other  for  money  due  and  owing  on  an  account 
stated;  to  which  defendants  pleaded  non  assumpsit,  payment  with 
leave,  &c.,  and  set-off;  and  on  the  issue  thus  formed  the  parties  went 
to  trial. 

The  case  was  this :  In  the  month  of  February,  1856,  the  plaintiffs 
shipped  on  board  the  ship  Tigress,  then  lying  in  the  port  of  Phila- 
delphia, 14,125  bags  of  corn,  which  was  owned  by  them,  to  be  carried 
and  delivered  to  the  plaintiffs  in  Liverpool;  which  ship  Tigress  was 
owned  by  the  said  defendants.  The  terms  of  the  contract  of  affreight- 
ment were  contained  in  the  bills  of  lading.  On  the  24th  day  of  March, 
185G,  the  Tigress  sailed  from  Philadelphia,  bound  for  Liverpool, 
having  the  said  corn  on  board,  and  having  her  cargo  properly  stowed 
and  secured,  and  being  seaworthy  in  every  respect,  in  charge  of  a 
pilot.  While  passing  down  the  Delaware,  she  encountered  floating 
logs  and  ice,  by  which  the  bow-port  was  stove  in.  The  vessel  began 
to  fill  and  sink,  and  in  order  to  save  her  she  was  stranded.  The 
cargo,  including  plaintiff's  corn,  was  taken  out,  transferred  to  lighters, 
and  brought  back  to  Philadelphia  in  a  wet  and  damaged  state.  The 
corn  was  surveyed  and  condemned  to  be  sold  for  account  of  those 
concerned,  under  writs  of  survey  issuing  out  of  the  District  Court 
of  the  United  States  for  the  Eastern  District  of  Pennsylvania,  and 
was  accordingly  so  sold  by  the  master  of  the  Tigress  for  the  sum 
of  $7,687.29.^ 

A  general  average  statement  was  made,  by  which  the  loss  payable  on 
the  said  corn  was  $l,0,'i5. 
•    This  action  wr.s  brought  to  recover  the  amount  of  the  sale  of  the 


G24  RICHARDSON"    ET    AL.    V.    YOUNG    ET    AL.  [BOOK    II. 

corn,  less  the  said  average  loss  of  $1,055,  and  the  sura  of  $1,033.04 
paid  to  them  by  defendants  on  the  3d  May,  185(i,  on  account. 

The  defendants  claimed  to  set  otf  the  sum  of  $0,425.17,  witli  inter- 
est from 185G,  for  and  as  the  amount  due  by  the  ])laintiirs  to 

the  defendants  for  the  freight  upon  the  said  corn  from  Philadelphia 
to  Liverpool. 

The  court  (Strong,  J.)  directed  the  jury  to  find  a  verdict  for 
the  plaintiffs  for  the  whole  amount  of  their  claim,  $(1,837.00,  reserving 
the  question  whether,  upon  the  whole  evidence  given,  the  defendants 
were  entitled  to  freiglit  upon  the  said  corn,  for  the  opinion  of  the 
court  in  banc. 

The  opinion  of  tlie  court  was  delivered,   February  4th,   1801,  by 

Woodward,  J.  At  the  argument  of  this  cause  I  was  not  sure 
but  that  some  peculiarity  attached  itself  to  the  contract  of  affreight- 
ment, whereby  a  sliipowner,  who  had  undertaken  the  conveyance  of 
merchandise  and  been  prevented  by  the  jx'rils  of  the  sea  from  deliver- 
ing it  according  to  the  consignment,  would  be  entitled  to  recover  frora 
the  shipper  either  full  freight,  or  freight  pro  rata  itineris.  But  upon 
looking  into  the  authorities,  I  am  satisfied  that  no  peculiarity  dis- 
tinguishes the  contract  of  afi'reightment  from  tliat  class  of  contracts 
which  the  law  treats  as  executory  and  entire  contracts.  The  settled 
doctrine  of  the  English  and  American  cases  is,  that  entire  contracts 
must  be  fully  performed,  and  cannot  be  aj)portioned,  although  a  new 
contract  may  be  imj)lied  from  the  voluntary  acceptance  of  services 
or  performance  different  from  that  for  which  tlie  original  contract 
provided.  Cutter  v.  Powell,  0  Term  P.  3t?().  and  lh(>  notes  thereto,  in 
2  Smith's  Lead.  Cases,  Am.  cd..  pp.  l-IT).  That  this  doctrine  is 
as  applicable  to  freight  as  to  other  things,  may  Ix-  seen  from  the  cases 
collected  and  commented  on  by  Judge  Story  in  the  note  on  page  547 
of  his  edition  of  Abbott  on  Shipping,  and  in  the  note  to  the  case 
of  Vlierboom  v.  Chapman.  13  ^\.  S;  \\\  23!K  .\m.  edition. 

But  the  best  cases  I  have  fuuiKl  .irc  in  our  own  hooks.  In  Ilurtin  v. 
The  Union  Insurance  Co..  1  \V.  ('.  ('.  I{.  yM),  .ludge  Wasiiinoton" 
laid  down  the  law  in  the.«e  few  and  -iniph'  words:  "'11'  the  cargo  is  not 
conveyed  to  its  place  of  destir.ation.  u>i  tieighl  can  be  demanded.  If 
voluntarily  accejjted  at  any  other  port  by  the  owner  or  his  su])er- 
cargo,  freight  pro  rata  ilinrris  is  due." 

The  ease  of  Amroyd  v.  The  Union  Insurance  Co.,  3  P.imi.  Ill, 
is  to  the  same  effect.  So  is  the  case  of  Calhuider  j-.  'i'he  Insurance 
Co.  of  North  America,  5  Binn.  525.  wherein  Chief  Justice  'i'ii.(!iiMAy, 
after  discussing  Lord  Mansi'ikf.d's  celebrated  case  of  Tjuke  v.  Lyde, 
2  Burrow,  HS3,  says,  "it  seems  to  have  been  understood  that  pro 
rata  freight  is  not  due,  unless  the  consent  of  the  merchant,  either  by 
words  or  aetions,  has  been  expressly  given,  or  may  be  fairly  deduced, 
to  accept  his  goods  at  an  intermediate  port,  and  such  consent  being 
given,  the  original  contract  is  di.ssolvcil,  and  a  new  one  arises." 


CllAI'.    II.]  KICHARDSON    ET    AL.    V.    YOUNG    ET   AL.  625 

h\  llic  ease  of  Cray  v.  Wain,  2  S.  &  R.  229,  the  same  doctrine 
was  applied,  and  a  pro  rata  l'n'i<j;lit  allowed,  Ijceause  upon  the  whole 
evidence  it  was  impossible  to  entertain  a  doubt  that  the  cargo  was 
voluntarily  received  by  the  sujjcrcargo  at  a  port  short  of  the  ship's 
destination.  These  Pennsylvania  cases  contain  a  very  full  discussion, 
both  at  bar  and  on  the  bench,  of  all  the  learning  on  the  subject. 

Now,  upon  these  principles,  it  is  perfectly  plain  that  the  defend- 
ants were  entitled  to  no  set-off,  either  for  full  or  partial  freight. 
They  undertook  to  carry  the  plaintiff's  corn  from  Philadelphia  to 
Liverpool,  aboard  the  ship  Tigress.  A  few  hours  out  of  port,  the 
vessel  was  stranded,  without  fault  of  the  master  or  crew.  The  plain- 
tiffs' corn  was  taken  out,  transferred  to  lighters,  brought  back  to 
Philadelj)hia  in  a  wet  and  damaged  condition,  and  was  surveyed  and 
condemned  to  be  sold  for  account  of  all  concerned.  All  this  occurred 
without  notice  to  the  plaintiffs,  and  without  assent  or  action  of  any 
sort  on  their  part.  Not  a  declaration  or  circumstance  was  alleged 
or  shown  from  which  a  new  contract  could  be  supposed  to  arise.  And 
this  distinguishes  the  case  from  that  of  Jordan  v.  The  Warren  In- 
surance Co.,  1  Story,  342,  in  which  the  dictum  of  Judge  Story,  so 
much  relied  on  by  the  learned  counsel  of  the  plaintiffs  in  error,  is 
found,  for  that  was  in  reality  a  case  of  "mutual  voluntary  agree- 
ment on  the  part  of  the  master  and  the  shippers,  that  the  damaged 
cargo  should  he  sold."  But  here,  so  far  from  there  being  any  such 
agreement,  there  was  not  even  a  notice,  by  the  master  to  the  shippers, 
of  damage  to  the  corn,  or  of  the  condemnation  and  sale  of  it.  The 
case  is  bare  of  any  circumstance  from  which  the  plaintiffs'  acceptance 
of  part  performance  can  be  inferred. 

But.  it  is  said,  the  master  is  the  agent  of  |;he  shippers.  For  some 
purposes  he  is.  He  may,  under  stress  of  weather,  remove  the  cargo 
into  another  vessel  that  may  chance  to  be  at  hand,  and  if  done  in 
good  faith,  he  will  not  be  liable,  though  his  own  ship  outride  the 
storm  and  the  other  perish.  He  may  in  some  circumstances  hypothe- 
cate the  cargo,  or  sell  part  of  it,  or  after  condemnation,  the  whole 
of  it,  as  in  this  case.  But,  in  the  language  of  Judge  Stroxg,  'Hie  is 
not  the  agent  of  the  owners  of  the  cargo,  with  power  to  relieve  the 
shipowners  from  their  obligation  to  convey  according  to  the  contract 
of  affreightment.  Vlierboom  r.  Chapman.  13  II.  &:  W.  230.  asserts 
that  he  is  not,  pointedly  and  directly."  I  may  add,  that  to  treat  him 
as  the  agent  for  the  shippers  for  such  a  purpose,  would  confound 
all  our  ideas  of  contracts;  for  how  is  a  man  to  contract  with  himself? 
As  agent  of  the  shipowners,  he  may  enter  into  the  contract  of 
affreightment  with  the  shippers ;  and  then  if.  as  agent  of  the  shippers, 
he  may  modify  or  annul  that  e(Uitract,  or  make  a  new  one.  it  is 
self-evident  that  his  mere  will  is  substituted  for  the  contract  of 
affreightment. 

The  learned  judge  was  right  in  ruling  that   the  receipt  by  the 


626  RICIIARDSOX    ET    AL.    V.    YOUNG    ET    AL.  [BOOK    11, 

plaintiffs  of  a  portion  of  t\\v  ])roceeds  of  the  sale  of  the  corn, 
amounted  to  no  voluntary  acceptance  of  the  cargo  at  Philadelphia. 
A  similar  implication  of  a  new  contract  was  attempted  to  be  set  up 
in  Amrovd  t\  The  Insurance  Comj)any,  before  referred  to;  but,  said 
Judge  TiLGHMAK,  "it  is  no  answer  to  the  defendant's  objection  to 
say  that  they  have  ratified  the  sale  of  the  goods  by  accepting  the 
proceeds.  What  else  could  they  do?  If  they  had  refused  the  proceeds, 
they  might  have  got  nothing.  They  never  were  consulted  about  the 
sale."  These  observations  apply  with  decisive  force  to  this  point  of 
the  plaintiffs  in  error's  case.  The  plaintiffs  were  not  consulted  about 
the  sale.  They  had  no  part  in  adjusting  the  general  average  account, 
nor  did  they  receive  the  thousand  and  odd  dollars  on  the  foot  of  it. 
I  do  not  mean  that  this  sum  did  not  result  from  that  account,  Init 
there  was  no  evidence  to  show  that  the  plaintilfs  had  ever  seen  the 
account,  or  meant  to  ratify  it  by  receiving  what  was  apportioned  to 
them.  They  received  it,  as  a  drowning  man  catches  at  straws,  as 
the  best  that  could  be  got;  but  under  the  circumstances  we  are  not 
to  imply  from  their  receipt  of  it,  that  new  contract  in  virtue  of  which 
alone  they  would  be  liable  for  freight. 

Xow,  as  to  the  bills  of  exception  to  evidence.  The  two  notices 
of  14th  April,  185G,  apparently  the  first  intimation  the  plaintiffs 
had  of  the  disaster,  were  subsequent  to  the  sale  of  the  corn,  which 
fi.xed  the  rights  of  all  parties.  The  receipt  of  such  notices,  even  less 
than  the  receipt  of  the  partial  payment  above  mentioned,  would 
gn»und  a  presumption  of  a  new  contract,  and  the  evidence  was  there- 
fore properly  rejected  as  irrelevant. 

So  was  the  other  piece  of  evidence  in  regard  to  the  beeswax  of 
Raphael  &  Co.  They  received  it  back  from  the  Tigress,  and  reshipped 
it  by  another  vessel  at  the  cost  of  the  owners  of  the  Tigress.  Had  the 
owners  of  the  corn  done  the  same  in  respect  to  their  portion  of  the 
cargo,  they  would  have  made  themselves  liable  for  full  freight;  but 
since  they  did  not,  they  could  not  be  made  liable  by  what  TJajtliael  & 
Co.  did  with  tiieir  beeswax. 

The  judgment  is  allirmed.' 

'."^f'f  in  nccori]  with  (lio  prin<"ij»al  raso:  TJddard  r.  Ldjx'M  (IHOIt)  10  East, 
r)2«J;  Hopper  r.  Murnr-Hs  (1S7(J)  L.  W.  I  <'.  I'.  i:t7;  Mctnilf  v.  Ilritnnnia  Iron 
WorkH  Co.  (1H7<5)  Tv.  R.  1  Q.  11.  P.  fll:!.  Tin-  diosont  in;;  opinion  of  ("ockiuun, 
('.  .J.,  in  thin  latter  case  ih  certainly  houikI  from  tlic  stand|>oiiit  of  (piasi-eon- 
traetH. — Ed. 


CHAP.   II.]  NEW   YORK   LIFE   INS.    CO.   V.    STATHAM  ET  AL.  627 


NEW   YORK   LIFE   INSURANCE    COMPANY   v.    STATHAM 

ET  AL. 

SAME  V.  SEYMS. 

MANHATTAN  LIFE  INSURANCE  COMPANY  v.  BUCK,  EX- 
ECUTOR. 

Supreme  Court  of  tiik  United  State,  187G. 

[93  United  States,  24.] 

The  first  of  these  cases  is  here  on  appeal  from,  and  the  second  and 
third  on  writs  of  errors  to,  the  Circuit  Court  of  the  United  States  for 
the  Southern  District  of  Mississippi. 

The  first  case  is  a  bill  in  equity,  filed  to  recover  the  amount  of  a 
policy  of  life  assurance,  granted  by  the  defendant  (now  ai)pellant)  in 
1851,  on  the  life  of  Dr.  A.  D.  Statham,  of  Mississippi,  from  the  pro- 
ceeds of  certain  funds  belonging  to  the  defendant  attached  in  the 
hands  of  its  agent  at  Jackson,  in  that  State.  It  appears  from  the 
statements  of  the  bill  that  the  annual  premiums  accruing  on  the  pol- 
icy were  all  regularly  paid,  until  the  breaking  out  of  the  late  civil 
war,  but  that,  in  consequence  of  that  event,  the  premium  due  on  the 
8th  of  December,  1861,  was  not  paid;  the  parties  assured  being  resi- 
dents of  Mississippi,  and  the  defendant  a  corporation  of  New  York. 
Dr.  Statham  died  in  July,  1863. 

The  second  case  is  an  action  at  law  against  the  same  defendant  to 
recover  the  amount  of  a  policy  issued  in  1859  on  the  life  of  Henry  S. 
Seyms,  the  husband  of  the  plaintiff.  In  this  case,  also,  the  premiums 
had  been  paid  until  the  breaking  out  of  the  war,  when,  by  reason 
thereof,  they  ceased  to  be  paid,  the  plaintiff  and  her  husband  being 
residents  of  Mississippi.    He  died  in  May,  1862. 

The  third  case  is  a  similar  action  against  the  Manhattan  Life  In- 
surance Company  of  New  York,  to  recover  the  amount  of  a  policy 
issued  l)y  it  in  1858,  on  the  life  of  C.  L.  Buck,  of  Vick.^burg;  the  cir- 
cumstances being  substantially  the  same  as  in  the  other  cases. 

Each  policy  is  in  the  usual  form  of  such  an  instrument,  declaring 
that  the  company  in  consideration  of  a  certain  specified  sum  to  it  in 
hand  paid  by  the  •■'ssurod,  and  of  an  annual  premium  of  the  same 
amount  to  be  paid  on  the  same  day  and  montli  in  everv  year  during 
the  continuance  of  the  policy,  did  assure  the  life  of  the  partv  named, 
in  a  specified  amount,  for  the  term  of  his  natural  life.  Each  con- 
tained various  conditioujj,  upon  the  lireach  of  which  it  was  to  he  null 
and  void:  and  amongst  others  tbo  following:  ''That  in  case  the  said 
[assured]    sliall  not  j^ay  the  said  premium  on  or  before  the  several 


628  NKNV    YOHK    I.IFi:    IXS.    CO.    r.    STATIIAM.  [BOOK    II. 

days  lioreinbefore  mentioned  for  the  payiiu'iit  tlu-roof,  then  and  in 
everv  such  case  the  said  company  shall  not  be  liable  to  the  payment  of 
the  sum  insured,  or  in  any  part  thereof,  and  this  policy  shall  cease 
and  determine."  The  Manhattan  policy  contained  the  additional  pro- 
vision, tliat,  in  every  case  where  the  policy  should  cease  or  become  null 
and  void,  all  previous  payments  made  thereon  should  be  forfeited  to 
the  com])any. 

The  non-payment  of  the  premiums  in  arrear  was  set  up  in  bar  of 
the  actions;  and  the  plaintiffs  respectively  relied  on  the  existence  of 
the  war  as  an  excuse,  offering  to  deduct  the  premiums  in  arrear  from 
the  amounts  of  the  policies. 

The  decree  and  judgments  below  were  against  the  defendants. 

Mr.  Justice  Buadlky.  after  stating  the  case,  delivered  the  opinion 
of  the  court. 

We  agree  with  the  court  below,  that  the  contract  is  not  an  assurance 
for  a  single  year,  with  a  privilege  of  renewal  from  year  to  year  by  pay- 
ing the  annual  premium,  but  that  it  is  an  entire  contract  of  assurance 
for  life,  subject  to  discontinuance  and  forfeiture  for  non-payment  of 
any  of  the  stipulated  premiums.  Such  is  the  form  of  the  contract, 
and  such  is  its  character.  Kacli  instalment  is,  in  fact,  part  consid- 
eration of  the  entire  insurance  for  life.  It  is  the  same  thing,  where 
the  annual  premiums  are  spread  over  the  whole  life. 

The  ca.se,  therefore,  is  one  in  which  time  is  uiaterial  and  of  the 
essence  of  the  contract.  Non-payment  at  the  day  involves  absolute 
forfeiture,  if  such  be  the  terms  of  the  contract,  as  is  the  case  here. 
Courts  cannot  with  safety  vary  the  stipidation  of  the  parties  by  intro- 
ducing equities  for  the  relief  of  the  insured  against  their  own  negli- 
gence. 

But  the  court  below  bases  its  dt'cision  on  the  assumption  that,  when 
perforjuance  of  the  condition  becomes  illegal  in  eonse(iuence  of  the 
prevalence  of  public  war.  it  is  excused,  and  foifciture  does  not  ensue. 
It  supposes  the  contract  to  have  been  sus|ten(lcil  during  the  war,  and 
to  have  revived  with  all  its  force  when  tlic  war  ended.  Such  a  suspen- 
sion and  revival  do  take  place  in  the  case  of  ordinary  (U'l)ts.  But  have 
they  (!V('r  been  known  to  take  place  in  the  casc^  of  executory  contracts 
in  which  time  is  material?  If  a  Texas  niercliMnl  IkkI  contracted  to 
furnish  some  Northern  exploicr  a  thousand  cans  of  preserved  meat  by 
a  certain  day,  .so  as  to  be  read\  for  his  departure  for  the  North  Pole, 
and  was  prevented  from  furnishing  it  by  the  civil  war,  would  the  con- 
tract still  be  good  at  the  close  of  the  war  five  years  afterwards,  and 
after  the  rettirn  of  the  expedition?  If  Ibe  proprietor  of  a  Tennessee 
quarry  had  agreed,  in  IHflO.  to  furnish,  during  the  two  following 
years,  ten  thousand  cubic  feet  of  marble,  for  tlw  construction  of  a 
l)uildirig  in  Cincinnati,  could  he  have  claimed  to  perform  the  contract 
in  IHO.').  on  the  ground  that  the  war  prevented  an  earlier  perform- 
ance ? 


CHAP.    II.]  NEW    YORK    LIFE    INS.    CO.    V.    STATHAM.  629 

The  truth  is,  that  the  doctrine  of  the  revival  of  contracts  suspended 
during  the  war  is  one  based  on  considerations  of  equity  and  justice, 
and  cannot  be  invoked  to  revive  a  contract  which  it  would  be  unjust  or 
inequitable  to  revive. 

In  the  case  of  life  insurance,  besides  the  materiality  of  time  in  the 
performance  of  the  contract,  another  strong  reason  exists  why  the  pol- 
icy should  not  be  revived.  The  parties  do  not  stand  on  equal  ground 
in  reference  to  such  a  revival.  It  would  operate  most  unjustly  against 
the  company.  The  business  of  insurance  is  founded  on  the  law  of 
averages;  that  of  life  insurance  eminently  so.  The  average  rate  of 
mortality  is  the  basis  on  which  it  rests.  By  spreading  their  risks  over 
a  large  number  of  cases,  the  companies  calculate  on  this  average  with 
reasonable  certainty  and  safety.  Anything  that  interferes  with  it  de- 
ranges the  security  of  the  business.  If  every  policy  lapsed  by  reason 
of  the  war  should  be  revived,  and  all  the  back  premiums  should  be 
paid,  the  companies  would  have  the  benefit  of  this  average  amount  of 
risk.  But  the  good  risks  are  never  heard  from;  only  the  bad  are 
sought  to  be  revived,  where  the  person  insured  is  either  dead  or  dying. 
Those  in  health  can  get  new  policies  cheaper  than  to  pay  arrearages  on 
the  old.  To  enforce  a  revival  of  the  bad  cases,  whilst  the  company 
necessarily  lose  the  cases  which  are  desirable,  would  be  manifestly  un- 
just. An  insured  person,  as  ])efore  stated,  does  not  stand  i.<olated  and 
alone.  His  case  is  connected  with  and  corelated  to  the  cases  of  all 
others  insured  by  the  same  company.  The  nature  of  the  business,  as 
a  whole,  must  be  looked  at  to  understand  the  general  equities  of  the 
parties. 

We  are  of  opinion,  therefore,  that  an  action  cannot  be  maintained 
for  the  amount  assured  on  a  policy  of  life  insurance  forfeited,  like 
those  in  question,  by  non-payment  of  the  premium,  even  though  the 
payment  was  prevented  by  the  existence  of  the  war. 

The  question  then  arises,  ^Must  the  insured  lose  all  the  money  which 
has  been  paid  for  premiums  on  their  respective  policies?  If  they  must, 
they  will  sustain  an  equal  injustice  to  that  which  the  companies  would 
sustain  by  reviving  the  policies.  At  the  very  first  blush,  it  seems  mani- 
fest that  justice  requires  that  they  should  have  some  compensation  or 
return  for  the  money  already  paid,  otherwise  the  companies  would  be 
the  gainers  from  their  loss;  and  that  from  a  cause  for  which  neither 
party  is  to  blame.  The  case  may  be  illustrated  thus :  Suppose  an  in- 
habitant of  Georgia  had  bargained  for  a  house,  situated  in  a  Xorthern 
city,  to  be  paid  for  by  instalments,  and  no  title  to  be  made  until  all  the 
instalments  were  paid,  with  a  condition  that,  on  the  failure  to  pay  any 
of  the  instalments  when  duo.  the  contract  should  be  at  an  end,  and 
the  previous  payments  forfeited  :  and  suppose  that  this  condition  was 
declared  by  the  parties  to  be  absolute  and  the  time  of  payment  mate- 
rial. Now,  if  some  of  the  instalments  were  paid  before  the  war,  and 
others  accruing  during  the  war  were  not  paid,  the  contract,  as  an  ex- 


G30  NEW    YORK    LIFE   IXS.    CO.    V.   STATHAM.  [UOOK    II. 

ecutory  one,  was  at  an  end.  If  the  necessities  of  the  veador  obliged 
him  to  avail  himself  of  the  condition,  and  to  resell  the  property  to  an- 
other party,  would  it  be  just  for  him  to  retain  the  money  he  had  re 
coived  ?  Perhaps  it  might  be  just  if  the  failure  to  pay  had  l)een  volun- 
tary, or  could,  by  possibility,  have  been  avoided.  But  it  was  caused  by 
an  event  beyond  the  control  of  either  party,  —  an  event  which  made  it 
unlawful  to  pay.  In  such  case,  whilst  it  would  be  unjust,  after  the 
war,  to  enforce  the  contract  as  an  executory  one  against  the  vendor 
contrary  to  his  will,  it  would  be  equally  unjust  in  him,  treating  it  as 
ended,  to  insist  upon  the  forfeiture  of  the  money  already  paid  on  it. 
An  equitable  right  to  some  compensation  or  return  for  previous  pay- 
ments would  clearly  result  from  the  circumstances  of  the  case.  The 
money  paid  by  the  purcliaser,  subject  to  the  value  of  any  possession 
which  he  may  have  enjoyed,  should,  ex  cequo  et  hono,  be  returned  to 
him.    This  would  clearly  be  demanded  by  justice  and  right. 

And  so,  in  the  present  case,  whilst  tlie  insurance  company  has  a 
right  to  insist  on  the  materiality  of  time  in  the  condition  of  payment 
of  premiums,  and  to  hold  the  contract  ended  by  reason  of  non-pay- 
ment, they  cannot  with  any  fairness  insist  upon  the  condition,  as  it 
regards  the  forfeiture  of  the  premiums  already  paid;  that  would  be 
clearly  unjust  and  ine(|uitable.  The  insured  has  an  equitable  right  to 
have  this  amount  restored  to  him,  subject  to  a  deduction  for  the  value 
of  the  assurance  enjoyed  by  him  whilst  the  policy  was  in  existence;  in 
other  words,  he  is  fairly  entitled  to  have  the  equitable  value  of  his 
policy. 

We  are  of  opinion,  therefore,  first,  that  as  the  companies  elected  to 
insist  upon  the  condition  in  these  cases,  the  policies  in  question  must 
be  regarded  as  extinguished  by  the  non-payment  of  the  premiums, 
though  cau.sed  by  the  existence  of  the  war.  and  that  an  action  will  not 
lie  for  the  amount  insured  thereon. 

Secondly,  that  such  failure  being  caused  by  a  ))ublic  war,  without 
the  fault  of  the  assured,  thoy  are  entitled  ex  frqiin  e(  bono  to  recover 
the  equitable  value  of  the  policies  with  interest  from  tlio  close  of  the 
war. 

In  estimating  the  equitable  value  of  a  policy,  no  deduction  should 
be  made  from  the  ])reci.se  amount  which  the  calculations  give,  as  is 
Rometimf's  done  where  policies  are  voluntarily  surrendered,  for  the 
purpose  of  discouraging  such  surrenders;  and  <he  value  should  be 
taken  as  of  the  day  when  the  first  default  occurred  in  the  payment  of 
the  premium  by  which  the  policy  became  forfeited,  in  each  case  the 
rates  of  mortality  and  interest  used  in  the  tables  of  the  company  will 
form  the  basis  of  the  calculation. 

The  (Irrrre  in  ihe  eqttlhf  still  riiul  Ihe  jiidfjmetils  in  fhe  nrlions  iil 
law  nrr  reversed,  ami  llir  rnnses  resperHvehj  rewnnded  io  he  pro- 
ceeded with  according  to  law  and  the  directions  of  his  opinion. 


CHAP.    II.]  NEW    YORK    LIFE    IXS.    CO.    V.    STATHAM.  631 

Waite,  C.  J.  I  agree  with  the  majority  of  the  court  in  tlie  opinion 
that  the  decree  and  judgments  in  these  cases  should  be  reversed,  and 
that  the  failure  to  pay  the  annual  i)remiums  as  they  matured  put  an 
end  to  the  policies,  notwithstanding  the  default  was  occasioned  by  the 
war;  but  I  do  not  think  that  a  default,  even  under  such  circumstances, 
raises  an  implied  promise  by  the  company  to  pay  the  assured  what  his 
policy  was  e({uital)Iy  worth  at  the  time.  I  therefore  dissent  from  that 
part  of  the  judgment  just  announced  which  remands  the  causes  for 
trial  upon  such  a  promise. 

Strong,  J.  While  I  concur  in  a  reversal  of  these  judgments  and 
the  decree,  1  dissent  entirely  from  the  opinion  filed  by  a  majority  of 
the  court.  I  cannot  construe  the  policies  as  the  majority  have  construed 
them.  A  policy  of  life  insurance  is  a  peculiar  contract.  Its  obliga- 
tions are  unilateral.  It  contains  no  undertaking  of  the  assured  to  pay 
premiums;  it  merely  gives  him  an  option  to  pay  or  not,  and  thus  to 
continue  the  obligation  of  the  insurers,  or  terminate  it  at  his  pleasure. 
It  follows  that  the  consideration  for  the  assumption  of  the  insurers 
can  in  no  sense  be  considered  an  annuity  consisting  of  the  annual  pre- 
miums. In  my  opinion,  the  true  meaning  of  the  contract  is,  that  the 
api)licant  for  insurance,  by  paying  the  first  premium,  obtains  an  in- 
surance for  one  year,  together  with  a  right  to  have  the  insurance  con- 
tinued from  year  to  year  during  his  life,  upon  payment  of  the  same 
annual  premium,  if  paid  in  advance.  ^Yhether  he  will  avail  himself 
of  the  refusal  of  the  insurers,  or  not,  is  optional  with  him.  The  pay- 
ment ad  diem  of  the  second  or  any  subsequent  premium  is,  therefore, 
a  condition  precedent  to  continued  liability  of  the  insurers.  The  as- 
sured may  perform  it  or  not,  at  his  option.  In  such  a  case,  the  doc- 
trine that  accident,  inevitable  necessity,  or  the  act  of  God,  may  excuse 
performance,  has  no  existence.  It  is  for  this  reason  that  I  think  the 
policies  upon  wdiich  these  suits  were  brought  were  not  in  force  after 
the  assured  ceased  to  pay  premiums.  And  so,  though  for  other 
reasons,  the  majority  of  the  court  holds:  but  they  hold  at  the  same 
time,  that  the  assured  in  each  case  is  entitled  to  recover  the  surren- 
der, or  what  they  call  the  equitable,  value  of  the  policy.  This  is  in- 
comprehensible to  me.  I  think  it  has  never  before  been  decided  that 
the  surrender  value  of  a  policy  can  be  recovered  by  an  assured,  unless 
there  has  been  an  agreement  between  the  parties  for  a  surrender:  and 
certainly  it  has  not  before  been  decided  that  a  supervening  state  of 
war  makes  a  contract  between  private  parties,  or  raises  an  implication 
of  one. 

]\rr.  Justice  Clifford,  witli  wliom  concurred  "Mr.  Justice  HrxT. 
dissenting. 

When  the  parties  to  an  executory  money-contract  live  in  diflferent 
countries,  and  the  governments  of  those  countries  become  involved  in 
public  war  with  each  other,  the  contract  between  such  parties  is 
suspended  during  the  existence  of  the  war,  and  revives  when  peace 


032  CUTTER    r.    POWELL.  [BOOK    II. 

ensues:  and  that  rule,  in  my  judgment,  is  as  applicable  to  the  con- 
tract of  life  insurance  as  to  any  other  executory  contract.  Conse- 
quently, I  am  obliged  to  dissent  from  the  opinion  and  judgment  of 
the  court  in  these  cases.* 


CUTTER,  ADMIXISTKATKIX  OF  CUTTER  v.  POWELL. 

King's  Bench,  1795. 

[G  Term  RrporL^.  320.] 

To  assumpsit  for  work  and  lal)or  done  by  the  intestate,  the  defend- 
ant pleaded  the  general  issue.  And  at  the  trial  at  Lancaster  the  jury 
found  a  verdict  for  the  plaintiff  for  1'31  lOs.,  subject  to  the  opinion  of 
this  court  on  the  following  case. 

The  defendant  lieing  at  Jamaica  subscribed  and  delivered  to  T. 
Cutter  the  intestate  a  note,  whereof  the  following  is  a  copy :  "Ten 
days  after  the  ship  Governor  Parry,  myself  master,  arrives  at  Liver- 
pool, I  promi.se  to  pay  to  Mr.  T.  Cutter  the  sum  of  thirty  guineas, 
provided  he  proceeds,  continues,  and  does  his  duty  as  second  mate  in 
the  said  ship  from  hence  to  the  port  of  Liverpool.  Kingston.  .Uily 
Slst,  1793."  The  ship  Governor  Parry  sailed  from  Kingston  on  the 
2d  of  August,  1793,  and  arrived  in  the  jiort  of  Liverpool  on  the  9th 
of- October  following.  T.  Cutter  went  on  board  the  sliip  on  the  31st 
of  July,  1793,  and  .sailed  in  her  on  the  2d  day  of  .\ugust,  and  pro- 
ceeded, continued,  and  did  his  duty  as  second  mate  in  her  from  King- 
ston until  his  death,  which  bappene(l  on  the  20tb  of  Sej)tember  fol- 
lowing, and  before  the  sbij)'s  arrival  in  the  port  of  Liverpool.  The 
usual  wages  of  a  second  mate  of  a  ship  on  such  a  voyage,  when  shipped 
by  the  month  nut  and  home,  is  four  poimds  per  month:  lint  when  sea- 

'In  repird  to  tlic  inlliicncf  of  war  on  life  insjirance  policioH,  it  may  l)o  said 
that  three  cHnentinlly  distinct  views  hnvp  hcr'ti  held  by  courts  of  hist  resort,  and 
reference  is  made  to  Ahell  r.  Penn.  Mutual  Life  Ins.  Co.  (1881)  18  W.  Va. 
400,  42:{-4.'J.')  for  their  enumeration,  and  criticism  of  tlie  authorities  cited. 

In  S<'mmes  r.  Hartford  Ins.  Co.  (1S71)  \'.\  Wall.  l^M,  the  action  was  tipon 
a  p<dicy  of  fire  insurance  containing'  the  cx|iress  stipuhition  that  no  suit  sliould 
1m'  Hustainahle  thereunder  uiiIchs  hrou^dit  witliin  twelve  months  after  the  loss 
rtr  <lania;{e  occurred.  The  civil  war  hroke  «iut  during  the  twelve  months  within 
which  the  suit  sh«>nld  and  no  douht  would  have  heen  hrou(»ht.  .As  it  was  im- 
poHsihle  to  hrinfj  wuit  during  the  war,  this  condition  was  not  performed.  It 
was  held  hy  th«'  court  that  the  conilition  was  entire  and  not  divisible;  that  as 
[M'rformanec  hiM-ame  impoMsilde  hy  opc-ration  of  law,  tlu-  assured  was  mtirely 
relieved  from  the  ohli;.;iit ion  of  hrin>,'iny  suit  within  the  twelve  months;  that 
the  nelion  could,  tlierefore,  he  maintained  within  the  statute  of  limitations. 
See  WambauKh.  ('ases  on  Insurance  (1002)  fl.'il,  note,  for  an  exhaustive 
ritation  of  ndjudirated  cattes. — Kr>. 


CllAI'.    J  I.J  CUTTER    V.    POWELL.  633 

men  are  shipped  by  the  run  from  Jamaica  to  England,  a  gross  sura  is 
usually  given.  The  usual  length  of  a  voyage  from  Jamaica  to  Liver- 
pool is  about  eight  weeks. 

This  was  argued  last  term  by  J.  Ileywood  for  the  plaintiff :  but  the 
court  desired  the  case  to  stand  over,  that  inquiries  might  be  made 
relative  to  the  usage  in  the  commercial  world  on  these  kinds  of  agree- 
ments. It  now  appeared  that  there  was  no  fixed  settled  usage  one  way 
or  the  other;  but  several  instances  were  mentioned  as  having  hap- 
pened within  these  two  years,  in  some  of  which  tlie  merchants  had 
paid  the  whole  wages  under  circumstances  similar  to  the  present,  and 
in  others  a  proportionable  part.    The  case  was  now  again  argued  by 

Lord  Kenyon,  C.  J.  I  should  be  extremely  sorry  that  in  the  de- 
cision of  this  case  we  should  determine  against  what  has  been  the  re- 
ceived opinion  in  the  mercantile  world  on  contracts  of  this  kind,  be- 
cause it  is  of  great  importance  that  the  laws  by  which  the  contracts  of 
so  numerous  and  so  useful  a  body  of  men  as  the  sailors  are  supposed 
to  be  guided  should  not  be  overturned.  Whether  these  kind  of  notes 
are  much  in  use  among  the  seamen,  we  are  not  sufficiently  informed ; 
and  the  instances  now  stated  to  us  from  Liverpool  are  too  recent  to 
form  anything  like  usage.  But  it  seems  to  me  at  present  that  the  de- 
cision of  this  case  may  proceed  on  the  particular  words  of  this  con- 
tract and  the  precise  facts  here  stated,  without  touching  marine  con- 
tracts in  general.  That  where  the  parties  have  come  to  an  express 
contract  none  can  be  implied  has  prevailed  so  long  as  to  be  reduced  to 
an  axiom  in  the  law.  Here  the  defendant  expressly  promised  to  pay 
the  intestate  thirty  guineas,  provided  he  proceeded,  continued,  and  did 
his  duty  as  second  mate  in  the  ship  from  Jamaica  to  Liverpool ;  and 
the  accompanying  circumstances  disclosed  in  the  case  are  that  the 
common  rate  of  wages  is  four  pounds  per  month,  when  the  party  is 
paid  in  proportion  to  the  time  he  serves;  and  that  this  voyage  is  gen- 
erally performed  in  two  montlis.  Therefore,  if  there  had  been  no  con- 
tract between  these  parties,  all  that  the  intestate  could  have  recovered 
on  a  quantum  meruit  for  tlie  voyage  would  have  been  eight  pounds; 
whereas  here  the  defendant  contracted  to  pay  thirty  guineas  ]irovided 
the  mate  continued  to  do  his  duty  as  mate  during  the  whole  voyage,  in 
wliich  case  the  latter  would  have  received  nearly  four  times  as  much 
as  if  he  were  paid  for  the  number  of  months  he  served.  He  stipulated 
to  receive  the  larger  sum  if  the  whole  duty  were  performed,  and  noth- 
ing unless  the  whole  of  that  duty  were  jierformed  :  it  was  a  kind  of  in- 
surance. On  this  ])articular  contract  my  opinion  is  formed  at  present; 
at  the  same  time  I  must  say  that  if  we  were  assured  that  these  notes 
are  in  universal  use,  and  that  the  commercial  world  have  received  and 
acted  upon  them  in  a  dilTerent  sense,  I  should  give  up  my  own  opinion. 

AsiTiruRST.  J.  We  cannot  collect  that  there  is  any  custom  prevail- 
ing among  merchants  on  these  contracts:  and  therefore  we  have  noth- 
ing: to  <,niide  us  but  the  terms  of  the  contract  itself.    This  is  a  written 


634  CUTTER    V.    I'OWKLL.  [BOOK    11. 

contract,  and  it  speaks  for  itsolf.  And  as  it  is  entire,  and  as  the  de- 
fendant's promise  depends  on  a  condition  prt'ccdent  to  he  performed 
by  tlie  other  party,  the  condition  must  he  performed  before  the  other 
part)'  is  entitled  to  receive  anything  under  it.  It  has  been  argued, 
however,  that  the  phiintil!  may  now  recover  on  a  qiuuitum  incruil ; 
but  she  has  no  riglit  to  (h'sert  the  agreement ;  for  wlierever  there  is  an 
e.\j)ress  contract,  the  parties  must  be  guided  by  it;  and  one  party  can- 
not relinquish  or  aljide  by  it  as  it  may  suit  his  advantage.  Here  the  in- 
testate was  by  the  terms  of  his  contract  to  perform  a  given  duty  before 
lie  could  call  upon  the  defendant  to  j)ay  him  anything;  it  was  a  condi- 
tion precedent,  without  performing  which  the  defendant  is  not  liable. 
And  that  seems  to  me  to  conclude  the  question;  the  intestate  did  not 
perform  the  contract  on  his  part ;  he  was  not  indeed  to  blame  for  not 
doing  it;  but  still  as  this  was  a  condition  precedent,  and  as  he  did  not 
perform  it,  his  representative  is  not  i-ntitled  to  recover. 

Grose,  J.  In  this  case  the  plaintiff  must  either  recover  on  the  par- 
ticular stipulation  between  the  parties,  or  on  some  general  known  rule 
of  law,  the  latter  of  which  has  not  been  much  relied  upon.  I  have 
looked  into  the  laws  of  Oleron,  and  I  have  seen  a  late  case  on  this  sub- 
ject in  the  Court  of  Common  Pleas,  Chandler  v.  Greaves,  Hil.  32 
Geo.  3  C.  B.  I  have  also  inquired  into  the  practice  of  the  merchants 
in  the  city,  and  have  been  informed  that  these  contracts  are  not  con- 
sidered as  divisilde,  and  tiiat  the  seaman  must  perform  the  voyage, 
otherwise!  he  is  not  entitled  to  his  wages;  though  1  must  add  that  the 
result  of  my  inquiries  has  not  been  perfectly  satisfactory,  and  there- 
fore I  do  not  rely  upon  it.  The  laws  of  Oleron  are  extremely  favorable 
to  the  seamen;  so  much  so  that  if  a  sailor,  who  has  agreed  for  a  voy- 
age, be  taken  ill  and  put  on  shore  ])efore  the  voyage  is  conijileted,  he  is 
nevertheless  entitled  to  his  whole  wages  after  deducting  what  has  been 
laid  out  for  him.  In  the  case  of  Chandler  v.  Greaves,  where  the  jury 
gave  a  verdict  for  the  whole  wages  to  the  jilaintilf.  who  was  put  on 
shore  on  account  of  a  broken  leg,  the  court  refused  to  LMJint  a  new 
trial,  though  I  do  not  know  the  precise  grounds  on  uhidi  tin-  court 
proceeded.  However  in  this  case  the  agreement  is  coiichisive;  Ihi'  de- 
fendant only  engaged  to  pay  the  intestate  on  condition  of  his  contin- 
uing to  do  his  duty  on  board  (luring  the  whole  voyage;  and  the  latter 
was  to  be  entitled  either  to  thirty  guineas  or  to  nothing,  for  such  was 
the  contract  between  the  parties.  And  when  we  recollect  linw  large  a 
price  was  to  l)e  given  in  th«'  event  of  the  mate  continuing  on  boar<I 
during  the  whole  voyage,  instea<l  of  the  small  sum  which  is  usually 
given  per  month,  it  may  fairly  be  considered  that  the  [larties  them- 
Hclves  understood  that  if  the  whole  duty  were  perforuie*!,  the  mate  was 
to  rec(Mve  the  whole  sum,  and  that  he  was  not  to  receive  anything  un- 
less he  did  continue  on  board  during  the  whole  voyage.  That  seems 
to  me  to  be  the  situation  in  which  the  mate  chose  to  put  himself;  and 
as  the  condition  was  not  complied  with,  his  representative  cannot  now 


CHAP.    11.)  CUTTEK    V.    I'OWKl^L.  635 

recover  anything.  1  believe,  however,  that  in  point  of  fact,  these  notes 
are  in  common  use,  and  perhaps  it  may  l^e  prudent  not  to  determine 
this  case  until  we  have  inquired  whether  or  not  there  lias  been  any 
decision  upon  thciii. 

Lawrence,  J.  If  we  are  to  determine  this  case  according  to  the 
terras  of  the  instrument  alone,  the  plaintiff  is  not  entitled  to  recover, 
l)ecause  it  is  an  entire  contract.  In  Salk.  G5,  there  is  a  strong  case  to 
that  effect;  there  debt  was  brought  upon  a  writing,  by  which  the  de- 
fendant's testator  had  appointed  the  plaintiff's  testator  to  receive  his 
rents,  and  promised  to  pay  him  £100  per  annum  for  his  service;  the 
phiintiff  showed  that  the  defendant's  testator  died  three-quarters  of  a 
year  after,  during  which  time  he  served  him,  and  he  demanded  £75 
for  three  quarters;  after  judgment  for  the  plaintiff  in  the  Common 
Pleas,  the  defendant  brought  a  writ  of  error,  and  it  was  argued  that 
without  a  full  year's  service  nothing  could  be  due,  for  that  it  was  in 
nature  of  a  condition  precedent;  that  it  being  one  consideration  and 
one  debt  it  could  not  l)e  divided;  and  this  court  were  of  that  opinion, 
and  reversed  the  judgment.  With  regard  to  the  common  case  of  an 
hired  servant,  to  which  this  has  been  compared ;  such  a  servant,  though 
hired  in  a  general  way,  is  considered  to  be  hired  with  reference  to  the 
general  understanding  upon  the  subject,  that  the  servant  shall  l)e  en- 
titled to  his  wages  for  the  time  he  serves  though  he  do  not  continue  in 
the  service  during  the  whole  year.  So  if  the  plaintiff  in  this  case 
could  have  proved  any  usage  that  persons  in  the  situation  of  this  mate 
arc  entitled  to  wages  in  proportion  to  the  time  they  served,  the  plain- 
tiff might  have  recovered  according  to  that  usage.  But  if  this  is  to 
depend  altogether  on  the  terms  of  the  contract  itself,  she  cannot  re- 
cover anything.  As  to  the  case  of  the  impressed  man,  perhaps  it  is  an 
excepted  case;  and  I  believe  that  in  such  cases  the  king's  officers 
usually  put  another  person  on  hoard  to  supply  the  place  of  the  im- 
pressed man  during  the  voyage,  so  that  the  service  is  still  performed 
for  the  benefit  of  the  owners  of  the  ship. 

Postca  to  the  defendant. 
unless  some  other  information  relative  to  the  usage  in  cases  of  this 
kind  should  be  laid  before  the  court  before  the  end  of  this  terra;  but 
the  case  was  not  mentioned  again^ 

"'Wlien  one  ])iuty  to  a  special  entire  contract  has  not  complied  with  its 
terms.  l)ut  professin<j:  to  act  under  it.  has  done  for.  or  delivered  to.  the  other 
party  something,'  of  value  to  him,  which  he  has  accepted,  no  action  will  lie  on 
that  contract  for  the  work  done  or  thins;  delivered:  but  the  party,  who  has 
thus  been  benefited  by  the  labor  or  property  of  the  other,  shall  be  resi>onsible 
on  an  implied  promise  arisinj:  from  the  circumstances,  to  the  extent  of  the 
value  received  by  him.  Thus  the  rules  of  pleading  in  regard  to  special 
contracts  are  preserved,  and  no  injustice  is  done.  The  following  authorities 
support  this  position,  and  the  more  particular  views  we  have  taken  of  the 
subject.  1  Chitt.  PI.  325;  1  Saund.  320,  n.  4;  Cook  r.  Jennings.  7  T.  R.  377; 


636  PARKEH  i.    MACOMBER.  [BOOK  II. 

TAKKEK    V.    MACOMBER. 

Supreme  Court  of  Rhode  Island,  1892. 

[17  Rhode  Island,  674.] 

Defendant's  petition  for  a  new  trial. 

Providence,  April  11,  1892.  Douglas,  J.  This  is  an  action  of 
assumpsit  brought  to  recover  compensation  for  board,  maintenance, 
care,  and  nursing  for  390  weeks,  from  April  1,  1881,  to  October  1, 
1888,  at  $5  per  week,  $1,950.  The  declaration  contains  the  common 
counts  in  indebitatus  assumpsit  for  goods  sold  and  delivered,  work 
and  labor,  money  had  and  received,  and  for  interest. 

The  jury  returned  a  verdict  for  the  plaintiff  and  assessed  his  dam- 
ages at  $1,072.50,  being  at  the  rate  of  $2.75  per  week  for  390  weeks. 
It  appeared  that  the  services  rendered  were  induced  by  a  parol  agree- 
ment between  the  parties  by  which  the  plaintiff  agreed  that  he  and  his 
wife  should  live  in  the  house  of  the  defendant,  and  care  for  and  main- 
tain her  during  her  natural  life,  and  the  defendant  agreed  in  consider- 
ation of  these  services  that  she  would  charge  no  rent  for  the  house, 
would  pay  $8  per  month  board,  and  would  give  the  house  and  lease- 
hold interest  in  the  lot  to  the  plaintiff  at  defendant's  death.  She  did 
not  pay  the  board  as  agreed,  but  did  pay  some  milk  bills  for  the  plain- 
tiff on  account. 

Plaintiff's  wife  died  February  13,  1888,  and  from  that  time  he  fur- 
ni.shed  housekeepers.  In  August,  1888,  defendant  notified  plaintiff  to 
leave  the  hous^e,  and  he  removed  Octoi)cr  1. 

Evidence  was  introduced,  against  the  objection  of  defendant,  of  the 
value  of  the  services  rendered. 

LitlliT  V.  Ilolliind,  3  T.  R.  riOO;  Sliipton  v.  Cnsson,  5  B.  &  C.  382;  Oxondale  r. 
Wr-thcn-II,  >.)  H.  &  V.  :m];  Sinclair  r.  Mnwlps.  id.  <)2 ;  C'ooko  r.  Munstonc.  1  N.  K. 
3.')1;  PaniK'tor  r.  Hurn-ll.  3  ('.  &  W  !44;  Hull.  N.  P.  13!);  Osjiood  v.  Gronin^', 
2  ('ani|)l).  A(W>;  Lucas  r.  (Jodwiii.  3  I{in;,di.  \.  (\  "37;  Sinnrd  r.  PattorHon,  3 
I'.Iiickf.  3r»3,  and  note;  Linnin^xdalo  r.  Livinjiston,  10  Johns.  3(i ;  Conhy  r. 
InytTsol,  4  Hlackf.  4ft3."— Loniax  r.   Hnilcy   (1845)    7  Hlackf.  r.!)!l.  (S()3. 

Ah  to  the  apportionment  of  oontracts,  hpo  note  to  Cuthbort  v.  Kuhn  (1837) 

31  Am.  Doc.  r)13,  r>17  ft  srq.;  and  nn  to  performance  of  entire  contract  as  a 
condition  pnvedcnt  to  recovery,  Hce  note  to  Catlin  v.  Tohias  (1803)  84  Am. 
Dec.    183.    188. 

On  nieaHure  of  recovj-ry  in  such  cases,  see  Ilillyard  v.  Crahtree's  .Adin's 
(18.')4)    II  Tex.  2ti4.  S.  C.  02  Am.   Dec.  475  and  note;  Clark  v.  (Jilhert    (  18(i0) 

32  Ilarh.  570  (holding  that  if  Hcrvices  are  worthless,  there  can  be  no  re- 
covery ) . 

For  nn  elaborate  note  to  the  principal  cti'^o,  collecting  the  Enplish  author- 
ities on  the  Hubject,  sec  2  Sm.  I>ead.  Cas.   (Itth  Am.  ed.)    1212  rt  srq. — En. 


CHAP.    II.]  P.VHKKK    r.    M.VCO.MMHH.  637 

The  (U'l'i'iidant  now  prav.-^  for  a  new  trial  on  the  ground  that  the 
services  were  performed  under  an  entire  contract,  which  was  not  com- 
pleted by  the  plaintiff  because  of  the  death  of  his  wife,  whose  personal 
attendance  formed  an  essential  part  of  the  consideration  of  it,  and  be- 
cause the  evidence  objected  to  was  inadmissible  under  the  declaration. 

The  plaintiff  contends  that  after  the  death  of  his  wife  the  same  ser- 
vices were  rendered  by  the  housekeepers  whom  he  engaged,  and  that 
ho  was  prevented  from  completing  the  contract  by  the  defendant,  who 
ejected  him  from  the  house,  and  not  by  his  wife's  death. 

The  questions  which  are  raised  by  the  petition  are,  whether  the 
plaintiff  can  recover  what  his  services  are  reasonably  worth,  notwith- 
standing the  making  of  the  contract,  and,  if  so,  whether  this  declara- 
tion is  sufficient  without  a  count  in  quantum  meruit  to  admit  evidence 
of  the  value  of  the  services,  and  to  sustain  a  judgment  therefor. 

We  cannot  doubt  that,  when  this  action  was  brought,  the  agree- 
ment had  been  annulled,  if  it  ever  had  had  any  validity. 

If  the  leasehold  interest  were  for  a  term  exceeding  one  year,  the 
agreement  amounted  to  an  attempt  to  convey  an  interest  in  real  estate 
I)y  parol,  and  was  void  under  the  statute  of  frauds. 

In  such  case,  as  the  defendant  refused  to  continue  the  arrangement, 
whether  justifiably  or  not,  the  plaintiff  is  entitled  to  recover  the  value 
of  his  services  already  rendered.  Lockwood  v.  Barnes,  3  Hill.  X.  Y. 
128;  King  v.  Welcome,  5  Gra}',  41. 

While  it  seems  to  be  assumed  that  the  lease  was  for  a  long  term,  and 
the  probabilities  of  the  situation  lead  us  to  the  same  supposition,  un- 
fortunately there  is  no  evidence  reported  which  enables  us  to  find  the 
fact,  and  we  cannot  presume  that  the  agreement  was  void  without 
proof. 

We  must  therefore  consider  the  agreement  as  originally  binding, 
and  determine  the  right  of  the  parties  upon  that  view  of  the  case. 

If  the  plaintiff  was  prevented  from  continuing  his  contract  by  the 
arbitrary  act  of  the  defendant,  he  may  disregard  it  and  recover  the 
value  of  the  services  he  has  rendered  in  partial  performance  of  it. 
Greene  &  Brown  v.  Haley,  5  R.  I.  2C^0.  If  the  death  of  the  plaintiff's 
wife  was  a  substantial  failure  of  thi^  consideration,  then  the  de- 
fendant was  justified  in  rescinding  the  contract,  as  the  full  perform- 
ance of  it  on  the  part  of  the  plaintiff  had  become  impossible.  We 
tiiink  such  was  the  case.  The  personal  services  and  attentions  of  the 
wife  to  the  defendant,  who  was  the  plaintiff's  aunt,  were  un<loubtedly 
contemplated  by  the  parties  as  more  agreeable  and  efficient  than  the 
services  of  strangers  could  be,  and  may  well  he  considered  an  essential 
part  of  the  benefits  which  the  defendant  was  to  receive.  Yerrington 
r.  Greene,  7  R.  I.  589;  Knight  v.  Bean,  22  ^h\  531 ;  Spalding  v.  Rosa, 
71  X.  Y.  40:  Stewart  r.  Loring,  5  Allen.  300. 

The  question  is,  then,  presented  whether  a  jierson  who  has  rendered 
personal  services  under  an  entire  contract,  which  the  act  of  God  has 


638  PARKER    V.    MACOMBER.  [BOOK    II. 

prevented  him  from  fully  performing,  can  recover  upon  an  implied 
assumpsit  wluit  those  services  are  reasonably  worth. 

In  case  of  the  destruction  of  the  fruits  of  the  service  so  that  neither 
party  has  the  value  of  them,  the  loss  must  be  adjusted  according  to 
the  scope  of  the  contract  and  the  circumstances  of  the  case,  and  dif- 
ferent courts  may  come  to  diverse  conclusions  in  cases  which  are  very 
similar  to  each  other.  But  when,  as  in  this  ease,  the  defendant  has  re- 
ceived and  retains  the  benefit  of  the  service,  we  think  that  the  plain- 
tiff should  recover.  It  is  not  just  that  one  should  benefit  by  the  labor 
of  another  and  nnike  no  return,  when  the  event  which  ends  the  service 
happens  without  the  fault  of  either  party,  and  is  not  exjiressly  or  im- 
pliedly insured  against  in  the  agreement  which  induced  the  labor. 
This  conclusion  seems  now  to  be  established  by  authority,  as  well  as  to 
rest  in  sound  rea.-^on.  We  know  of  no  case  which  holds  that,  if  the 
special  a«rreeuient  is  no  longer  binding,  the  plaintiff  may  not  resort 
to  a  quantum  meruit.  The  leading  case  of  Cutter  r.  Powell,  G  Term 
Rep.  320,  held  the  special  contract  not  to  have  been  annulled  by 
death,  and  there  were  circumstances  connected  with  the  agreement 
which  gave  color  to  that  construction.  The  contract  was,  to  perform 
a  voyage  for  a  compensation,  to  be  paid  upon  arrival,  largely  in  excess 
of  the  ordinary  wages  for  such  services.  The  sailor  died  before  the 
voyage  was  finished,  and  it  was  held  that  his  administrator  could  not 
recover  anything.  The  King's  Bench  seem  to  have  felt  the  harshness 
of  the  rule  they  were  bound  by,  even  in  that  case,  and  caused  inipiiry 
to  be  made  if  some  custom  of  the  maritime  law  might  not  be  found 
to  mitigate  the  severity  of  the  contract,  Init  at  the  end  of  the 
term,  no  such  usage  having  been  found,  they  gave  judgment  for 
the  defendant. 

W.  \V.  Story  says  of  this  decision :  "But  this  case  may  be  explained 
by  the  fact  that  the  thirty  guineas  was  an  extra  price  for  the  voyage, 
much  larger  than  the  ordinary  wages  would  amount  to  for  the  length 
of  such  a  voyage,  and  that  both  parties  understood  and  intended  that 
the  contract  .should  be  entire,  and  that  the  sailor  should  take  the  risk 
of  the  whole  voyage  In  other  tribunals,  and  where  there  is  no  ex- 
pressly entire  contract,  the  death  or  sickness  of  the  laborer  is  a  suf- 
ficient excu.^e  for  non-performance,  and  be  may  recover  pro  tnutn  for 
the  time  he  has  labored."  1  Story  on  Contracts.  V^.  Sjuith's  Leading 
Ca.'V's,  !>th  Amer.  ed.  1238,  in  the  note  to  Cutter  r.  Powell,  say:  "The 
death  of  either  party  puts  an  end  to  a  contract  for  jxTsonal  services 
unless  it  is  otherwise  agreed."  I'resident  Tucker,  of  the  Virginia 
Court  of  .Appeals,  referring  to  the  same  ease,  says:  "That  case  can 
only  l)C  sustainc*!,  I  think,  on  the  ground  principally  relied  on  of  extra 
wages.  But  notwithstanding  these  and  other  cases  which  rigorously 
deny  comf)ensation  Jinless  there  is  entire  performance,  there  can  be  no 
doubt  that  when  the  subj«'ct  is  divisible,  when  the  failure  as  to  part 
can  be  fairly  and  accurately  compensated  by  an  apportionment  of  the 


CHAP.    II.]  PARKER   V.    MACOMBER.  639 

consideration,  tlie  law  permits,  as  justice  certainly  requires,  that  it 
should  be  done."    Bream  v.  Marsh,  4  Leigh,  21,  29. 

In  Haynes,  Spencer  &  Co.  v.  Sec.  Baptist  Church  of  St.  Louis,  13 
Mo.  Aj){).  53(J,  539,  it  is  said  by  tlie  court:  "If  money  is  to  be  paid 
when  the  work  is  done,  non-performance  of  the  work  is  a  good  de- 
fence; and  where  there  has  been  a  partial  performance  only,  and  not  a 
performance  of  what  is  substantial  in  the  contract,  as  a  general  rule 
plaintiff  cannot  recover.  The  rule  always  applies  when  the  non-per- 
formance is  voluntary  on  the  plaintiff's  part.  But  when  the  non-per- 
formance is  caused  by  the  defendant,  or  by  the  act  of  God,  the  rule  is 
not  always  applied,  and  in  this  country  Cutter  v.  Powell  has  not 
been  followed,  but,  in  contracts  for  service,  sickness  and  death  have 
been  held  to  excuse  the  non-performance  of  an  entire  contract."  See, 
also,  Carpenter  v.  Gay,  12  R.  I.  306;  Farrow  v.  Wilson,  L.  R.  4,  C.  P. 
744. 

Wolfe  i'.  Howes,  20  N.  Y.  197,  is  clearly  analogous  to  the  case  at 
bar.  The  plaintiff's  declaration  contained  the  common  counts  only 
for  work,  labor,  and  services  rendered  by  his  testate,  as  a  skilled  work- 
man, to  the  defendant.  A  contract  was  set  up  in  defence  by  which  the 
testator  had  agreed  to  work  a  year  at  $40  per  month,  $10  of  which 
was  to  be  paid  monthly.  Before  the  end  of  the  year  he  became  unable 
to  work  from  sickness,  and  so  continued  till  his  death.  It  was  hold  by 
the  referee  that,  by  reason  of  this  sickness  and  death  of  the  workman, 
he  was  discharged  from  the  further  performance  of  his  contract,  and 
his  executor  was  entitled  to  recover  a  reasonable  compensation  for  his 
services  preceding  the  sickness.  The  Supreme  Court  atlirmod  the  de- 
cision, and  the  Court  of  Appeals,  after  a  careful  examination  of  the 
authorities,  held  that  the  contract  contemplated  the  personal  services 
of  the  workman,  and  that  full  performance,  being  prevented  by  sick- 
ness or  death,  was  not  a  condition  precedent  to  the  right  to  recover, 
and  laid  down  the  general  proposition  that  one  who.  under  a  contract 
requiring  his  personal  services,  and  providing  for  partial  payment 
during  the  employment  and  the  remainder  at  the  end  of  the  term,  per- 
forms services  valuable  to  the  em]iloyer,  but  before  the  expiration  of 
the  stipulated  peri-rd  is  disabled  l)y  sickness  from  completing  his  con- 
tract, is  entitled  to  recover  as  upon  a  qiunitiim  meruit  for  such  services 
as  he  rendered. 

Ai.i.Kx.  J.,  p.  200,  in  considering  the  case  of  Cutter  v.  Powell,  saj'S 
it  "is  distinguishable  in  this,  that,  by  the  peculiar  wording  of  the  con- 
tract, it  was  converted  into  a  wagering  agreement,  by  which  the  party, 
in  consideration  of  an  unusually  high  rate  of  wages,  undertook  to  in- 
sure his  own  life,  and  to  render  at  all  hazards  his  personal  services 
during  the  voyage,  before  the  completion  of  which  he  died." 

See,  also,  to  the  same  general  effect.  Fuller  r.  Brown,  11  ^letc.  440; 
Seaver  v.  :Morse.  20  Vt.  620:  Fenton  v.  Clark,  11  Vt.  557,  5  Lawyers' 
Eep.  annotated  707,  note;  Clark  v.  Gilbert,  26  X.  Y.  279:  Coe  v. 


640  PARKER    V.    -AfACOMBER.  [BOOK    II. 

Smith,  4  Ind.  79;  Hubbard  r.  Bolden,  27  Vt.  G45 ;  Patrick  v.  Putnam, 
27  Vt.  7o!»;  Lakt-nian  /'.  I'ollard,  43  Me.  4(i3 ;  Kyan  v.  Dayton,  25 
Conn.  188;  Green  et  al  v.  Gilbert,  21  Wise.  401;  Dane's  Abridg.  cap. 
9,  art.  22,  5<|^  17,  18. 

The  question  remains  whetlier  the  plaintiff's  declaration  is  sulheient 
without  the  count  in  (juanluni  meruit. 

We  think  it  is  suflicient.  A  count  in  <]ua>ihim  meruit  as  well  as  one 
in  indebitatus  assumpsit  for  work,  labor,  skill,  care,  and  diligence, 
etc.,  claims  a  certain  sum  as  due.  In  either  case  the  plaintiff  may  re- 
cover le.-^s,  and  the  judgment  is  for  so  much  of  his  stated  claim  as  is 
found  to  be  justly  merited.  The  counts  in  quantum  meruit  and  in 
(juantum  valehat  are  therefore  unnecessary  in  any  case.  1  Chitty  on 
Pleading,  352,  353. 

The  petition  for  a  new  trial  must  be  denied  and  dismissed.^ 

'An  art  of  fJod  •rt'iicrally  cxcusts  (lie  jiorfoniiance  of  a  contract,  Haldwin 
r.  Ins.  Co.  (1858)  3  Bosw.  530:  IVo|)lc  r.  Tul)l).s  (18(58)  37  N.  Y.  58(5;  New 
Haven  &  Northampton  Co.  v.  Quintard  (IHCJi)  U  Abb.  Pr.  N.  S.  128;  Hare. 
Contracts,  037  et  seq. :  Pape.  Contracts,  §  13()2  and  ca.se9  cited.  Otherwise  if 
the  act  could  have  been  foreseen,  Worth  v.  Edmunds   (1868)    52  Barb.  40. 

Accordinf,'ly  death  may  terminate  a  contract,  Babcock  v.  Goodrich    (1879) 

3  How.  Pr.  N.  S.  52,  54,  and  a  contract  so  dctcriniiu'd  may  be  apportioned. 
George  r.  Elliott  (180(>)  2  Hen.  &  M.  5;  Townsciid  v.  Hill  (18.)7)  18  Tex. 
422.  Where  the  contract  is  apporlionable,  a  recovery  should  be  permitted  for 
the  part  performed.  Coe.  r.  Sniitli  (  1H53)  4  hid.  70,  S.  C.  58  .\m.  Dec.  (il8 
and  note;  Stubbs  r.  Holywell  Ry.  Co.  (18(i7 )  I..  11.  -  V.\.  :ill  ;  Seymour  r. 
Ca^'^rer  (1878)  13  Hun.  2i»;  Lacy  r.  (ietmaii  (  IS'IO)  ll!(  N.  ^.  10!l;  Landa  r. 
Shook    (  IS!l5)    87  Tex.  (i()8. 

S«t,  also,  the  existence  in  the  nei;,'hi)orhood  of  an  epidemic,  contaf^ious  dis- 
ease likely  to  produce  death,  or  circumstances  likely  to  result  in  serious 
bodily  harm.  I^kcman  v.  Pollard  (1857)  43  .Me.  4(i3 ;  Walsh  r.  Kishcr  (18!M)) 
!U2  Wis.  172.  .And  consfiare  the  followiiij;  cases:  Dewey  r.  I'nion  School 
Distri<-t  (1880)  43  .Mich.  480;  (Jean.  Cniy  (ls!»|)  lit  In. I.  .\|.|..  428;  Stewart 
V.  Lorinj;  (18(i2)  5  Allen,  3()<i ;  Libl.y  r.  Duuulas  (  1!»(M»)  17:,  .Mass.  128;  Ellis 
V.  Midland  Ry.  Co.    (1882)   7  (»nt.  .\|i|..    tdl. 

So,  also,  sickness  will  excuse  the  piTformance  of  a  contract,  Dickey  r. 
I.in.Hcott  (1841)  20  Me.  453;  People  v.  .Mannin;,'  (1828)  8  Cow.  2!)7  ;  SjmldinK 
r.  Uosa  (1877)  71  N.  Y.  40;  Bobinson  r.  Davison  (1871)  I..  11.  «l  Ex.  20!); 
PouHsard  r.  Spiers  &  Pond  (l87t>)  ]..  K.  1  (,)  B.  I).  410,  unless  it  should  have 
Imth  foreseen,  .lennin);s  r.  Lyons  (187(5)  30  Wis.  553  (where  a  woman  was 
confined  within  four  months  after  (he  making'  of  a  contract  for  a  year's 
wrviee)  ;  Re.x  v.  Hales  Owen  (1718)  1  .Str.  00;  and  a  recovery  is  permitted 
for  services  perff>rmed  befure  sickness,  Hubbard  r.  B4'lden  (1855)  27  Vt.  (145; 
Ktthy  r.  North  (18,55)  10  Barb.  341;  Hyan  r.  Dayton  (  I8.5fl)  25  Conn.  188; 
Toden  r.  Farwell  (18(57  I  08  Mass.  137;  Harrinjrton  t'.  Iron  Works  Co.  (1875) 
no  Mass.  82;  .McClelhin  v.  Harris  (1805)  7  S.  Dak.  447;  and  see  notes  to 
Wolfe  r.  Howes  (1850)  75  Am.  Dec.  388,  and  Clark  r.  (lilbert  (18(53)  84  Am. 
Dec.  180;  Cuckson  v.  Slrmes  (1850)    1  E.  A-  E.  248;   Boast  r.  Firth   (18(58)   L.  K. 

4  <■    P.    1.      But  wlure,  l>v  the  terms  «)f  the  contract,  notice  of  the  disability 


CHAP-  II.]  JONES  AND  JONES  C.    J  UDD.  641 

JONES  AXl)  JOXES  v.  JUDD. 

Court  of  Appeals  of  Xew  York,  1850. 

[4  Comstock,  412.] 

James  Jones  and  Edward  Jones  sued  Judd  in  the  Common  Pleas 
of  Cattaraugus  county,  for  the  price  of  work  and  labor.  The  defend- 
ant contracted  with  the  State  to  complete  certain  sections  of  the 
Genesee  Valley  Canal.  On  the  14th  of  September,  1840,  he  entered 
into  a  sub-contract  with  the  plaintiffs  for  a  part  of  the  same  work, 
by  which  he  agreed  to  pay  them  seven  cents  per  yard  for  excavating 
and  eight  cents  for  embankment,  monthly,  according  to  the  measure- 
ment of  the  engineers,  except  ten  per  cent,  which  was  not  to  be  paid 
until  the  final  estimate.  The  work  on  the  canal,  including  that  on 
which  the  plaintiffs  were  engaged,  was  stopped  by  the  canal  com- 
missioners on  the  21st  day  of  June,  1841,  before  they  had  completed 
their  job,  and  they  never  finished  it.  On  the  29th  of  ]\Iarch,  1842, 
the  legislature  passed  the  act  "to  preserve  the  credit  of  the  State," 
which  put  an  end  to  the  original  contract  between  the  defendant  and 
the  State,  and  before  the  commencement  of  this  suit  that  contract 
had  expired  by  its  own  limitation.  The  defendant  paid  the  plaintiffs 
for  all  the  work  performed  by  them  except  the  ten  per  cent,  reserved, 
which  amounted  to  $85.30,  which  sum  the  plaintiffs  claimed  to 
recover. 

The  defendant  moved  for  a  nonsuit  on  the  ground,  among  others, 
that  without  a  waiver  of  full  performance  of  the  contract,  or  without 
some  act  of  his  to  prevent  the  performance,  the  plaintiffs  could  not 
recover.  The  motion  was  overruled.  The  defendant  then  proved 
that  the  work  actually  done  by  the  plaintiffs  under  the  contract  was 
worth  only  five  cents  for  embankment  and  seven  cents  for  excavation. 
He  offered  also  to  prove  what  the  cost  of  the  work  not  done  would  be, 
and  that  the  excavation  and  embankment  not  done  would  be  more 
difficult  and  expensive  than  the  portion  completed.  This  evidence 
was  objected  to  and  excluded.  The  referees  before  whom  the  trial 
was  had  reported  in  the  plaintiffs'  favor  for  the  sum  claimed.  The 
Common  Pleas  confirmed  their  report,  and  rendered  judgment  there- 
on, which  was  affirmed  by  the  Supreme  Court,  on  error  brought.  The 
defendant  appealed  to  this  court. 

Gardineh,  J.  The  plaintitTs  were  stopped  in  the  prosecittion  of 
the  work,  in  fulfilment  of  their  contract,  by  the  authority  of  the  State 
officers.     Before  this  injunction  was  removed,  the  law  of  March  20, 

^vas  to  <;o  jrivon,  and  i^iich  notice  was  jiot  piveri,  a  recovery  was  denied.  Xoon 
r.  Salisbury  Mills  (1802)  3  Allen,  34<\  but  see  Fuller  r.  Bro\ni  (1S46)  11 
Met.  440.— Ed. 


643  JONES  AXD  JONES  V.  JUDD.  [BOOK   II, 

1842,  for  preserving  the  credit  of  the  State,  was  passed,  which  put 
an  end  to  the  original  contract,  and  the  agreement  between  the  plain- 
tiffs and  defendant  which  grew  out  of  it.  3  Mass.  331;  Doughty  v. 
Neal,  1  Saund.  R.  21G,  note  b,  5th  Ed.;  10  Johns.  28. 

As  the  plaintifTs  were  prevented,  bv  the  authority  of  the  State, 
from  completing  their  contraet,  they  are  entitled  to  recover  for  the 
work  performed,  at  the  contract  price.  The  ten  per  cent,  was  a  part 
of  the  price  stipulated.  It  was  reserved  to  secure  the  fulfilment  of 
the  contract,  and  to  1)C  paid  upon  a  final  estimate.  The  performance 
of  the  required  condition  became  impossible  by  the  act  of  the  law, 
and  of  course  the  plaintiffs  were  entitled  to  recover  without  showing 
a  compliance  with  the  agreement  in  this  particular.  Comyn  on  Cont. 
50;  10  Johns.  36. 

Upon  the  question  of  damages;  T  think  the  offered  evidence  was 
properly  rejected.  If  the  contract  had  been  performed  by  the  plain- 
tiff, he  might  have  recovered  upon  the  special  agreement,  or  upon 
the  common  counts,  and  in  either  case  he  would  be  entitled  to  the 
price  fi.xed  by  the  agreement.  Phil.  Evid.  100,  2d  Ed.;  Dubois  v. 
Del.  &  H.  Canal  Co.,  4  Wend.  280,  and  cases  cited.  If  the  perform- 
ance had  been  arrested  by  the  act  or  omission  of  the  defendants,  the 
plaintiff  would  have  had  his  election,  to  treat  the  contract  as  rescinded, 
and  recover  on  a  qiKuitum  meruit  the  value  of  his  labor,  or  he  might 
sue  upon  the  agreement,  and  recover  for  the  work  completed  accord- 
ing to  the  contract,  and  for  the  loss  in  profits  or  otherwise  which  he 
had  sustained  by  the  interruption.  Linningdale  v.  Livingston, 
K)  Johns.  36;  9  B.  &  C.  145;  Masterton  v.  The  :Mayor  of  Brooklyn, 
7  Hill,  <)9,  75.  In  this  case  the  performance  was  forbidden  l)y  the 
State.  Neither  party  was  in  default.  All  the  work,  for  which  a 
recovery  is  sought,  was  done  under  the  contract,  which  fixed  a  precise 
sum  to  be  paid  for  each  yard  of  earth  removed,  without  regard  to 
the  ditliculty  or  expense  of  the  excavation.  If  the  plaintiffs  had 
commenced  with  the  more  expensive  part  of  the  work,  they  could  not, 
under  the  circumstances,  have  claimed  to  have  been  allowed  for  the 
])rofits  to  arise  from  that  portion  which  they  were  prevented  from 
completing.  Such  an  allowance  is  ])redicated  upon  a  breach  of  the 
contract  by  the  defendant.  7  Hill.  TK  7.5.  The  defendants,  in  the 
language  of  Judge  Bkaimisi.kv.  "are  not  by  their  wrongful  act  to 
deprive  the  plaintiff  of  the  advantage  secured  by  the  contraet."  Here, 
there  was  no  breach  of  the  agreement  by  either  jiarty.  The  i)laintiiT- 
could  not  recover  profits,  ami  the  defendant  cannot,  conse<|uently, 
recoup  them  in  this  action.     Blanehard  v.  Ely,  21  Wend.  .'MC.. 

Again:  the  plaintiffs  asstinvd  the  risk  of  all  aeeidents  which  might 
enhance  the  expense  of  the  work,  while  the  contract  was  subsisting 
(Boyle  V.  Canal  Co.,  22  Pick.  384;  Sherman  r.  Mayor  of  New  York, 
1  Comst.  321),  and  are  entitled,  eon«ec|uently,  to  the  advantages,  if 
any,  resulting  from  them.     The  .suspension  of  the  work  by   State 


CHAP.    II.]  MENETONE   V.    ATHAWES.  643 

authority  was  an  accident  unexpected  by  either  party.  It  was  one 
which,  under  the  offer,  we  are  bound  to  assume,  was  of  benefit  to  the 
plaintiffs.  But  the  defendant  cannot  recjuire  an  abatement  from 
the  agreed  price,  for  what  has  been  done,  unless  he  could  demand  it 
in  case  a  flood  had  partially  excavated  or  embanked  the  section  of 
the  canal  to  be  completed  by  the  plaintiffs.  The  judgment  must  be 
affirmed. 

Jewett,  Hurlbut,  and  Pratt,  J.T.,  concurred. 

Bronson,  C.  J.,  RuGGLEs,  HARRIS,  and  Taylor,  JJ.,  were  for 
reversal,  on  the  ground  that  the  evidence  offered  upon  the  question 
of  damages  was  improperly  excluded. 

Judgment  affirmed.^ 


MENETONE  V.  ATHAWES. 

King's  Bench,  1764. 

[3  Burrow,  1592.] 

This  was  an  action  by  a  shipwright  for  work  and  labor  done  and 
materials  provided,  in  repairing  the  defendant's  ship.  And  the  ques- 
tion was,  "Whether  the  plaintiff  was  entitled  to  recover,  under  the 
following  circumstances." 

The  ship,  being  damaged,  was  obliged  to  put  back,  in  order  to  be 
repaired  in  dock ;  and  was  to  have  gone  out  of  the  dock  on  a  Sunday ; 
in  the  interim,  viz.,  on  the  day  before,  and  when  only  three  hours' 
work  was  wanting  to  complete  the  repair,  a  fire  happened  at  an 
adjacent  brew-house,  and  Avas  communicated  to  the  dock;  and  the 
ship  was  burnt. 

'Accord:  :Melville  r.  De  Wolf  (185.5)  4  B.  e^-  E.  844;  Cross  v.  Hyne  (1868) 
18  L.  T.  N.  S.  474;  Heine  v.  Meyer  (1871)  61  N.  Y.  171  (expressly  following 
the  principal  case). 

As  to  the  effect  of  a  subsequent  statute  that  chancres  the  nature  of  an 
obligation  which  at  the  time  of  making  was  either  lawful  or  unlawful,  see 
Dyer,  27,  p.  178;  Brewster  r.  Kitchell  (1098)  1  Salk.  198,  S.  C.  1  Ld.  Raym. 
317;  Comb.  424.  4G6;  Holt,  175,  609;  12  Mod.  KKi:  Brown  r.  Mayor  (1861)  9 
C.  B.  N.  S.  726;  Baily  r.  Dc  Crispigny  (1869)  L.  R.  4  Q.  B.  180;  Brick  Presby- 
terian Church  V.  New  York  (1826)  5  Cow.  538. 

The  effect  on  a  contract,  of  an  act  of  the  home  government,  is  shown  by  the 
cases  of  Wiggins  r.  Ingleton,  and  Chandler  r.  Meade  (1705)  reported  in  2  Ld. 
Raymond.  1211  as  follows:  "In  an  action  brought  for  mariner's  wages  for 
a  voyage  from  Carolina  to  London,  it  appeared  that  the  plaintiff  served  three 
or  four  months,  and,  before  the  ship  came  to  London,  which  was  the  de- 
livering port,  he  was  impressed  into  the  Queen's  service;  and  afterwards  the 
ship  arrived  at  the  deliverinj:  port.  And  ruled  by  Holt,  on  evidence  at  Guild- 
ball,  that  the  plaintiff  should  recover  pro  tanto  as  he  served,  the  ship  coming 


G44  MENETONE    t'.    ATIIAWES.  [BOOK   II. 

X.  B.  It  was  the  shipwright's  own  dock,  and  the  owner  of  the 
ship  had  ai^^reed  to  pay  him  £5  for  the  use  of  it. 

This  ease  was  argued  on  Tuesday,  the  13th  of  this  month,  hy  Mr. 
Murphy,  for  the  plaintiff;  and  Mr.  Ditnniiuj,  for  the  defendant. 

For  the  plaintiff,  it  was  insistetl  that  lie  was  not  answerable  for  this 
event,  whieh  happened  without  his  negleet  or  default;  unless  there 
had  been  some  special  undertaking. 

Indeed,  a  tenant  is  bound  to  provide  the  landlord  as  good  a  house, 
in  case  of  its  being  burnt,  if  he  covenants  to  deliver  up  the  house  to 
him  again,  in  as  good  repair  as  it  was  then:  upon  such  a  special 
undertaking  an  action  would  lie,  but  not  otherwise.  Doctor  and 
►Student,  dialogue  2,  chap.  4. 

In  the  case  of  wagoners  and  common  carriers,  they  are  bound  to 
answer  for  the  goods  against  all  events  but  acts  of  God  and  of  the 
enemies  of  the  king.  Coggs  v.  Bernard,  2  Ld.  Haym.  900 ;  Amies  v. 
Stephens,  1  Str.  128.  And  a  gaoler  is  excusable  from  escapes  in 
those  cases.  1  llo.  Abr.  808,  pi.  5,  6.  And  in  like  manner,  where  it  is 
the  act  of  God,  the  person  who  has  the  custody  of  another  man's  prop- 
erty is  excused. 

The  plaintiff  here  was  a  general  bailee  only,  therefore  not  charge- 
able. 1  Inst.  89.  He  was  only  obliged  to  keep  it  as  he  would  keep 
his  own. 

The  case  of  Coggs  v.  Bernard  in  2  Ld.  Kaym.  900,  overrules  South- 
cote's  ease  in  4  Co.  84. 

Even  a  pawn  remains  the  jiroperty  of  the  original  owner.  Sir  John 
irarto|)p  V.  Iloare.  2  Str.  UST.  Tlu-  plaintilf  was  considered  as  a 
mere  bailee,  for  safe  custody  only. 

In  insurances  made  by  merchants,  it  is  usual  to  insert  docks.  The 
men  were  on  board  of  this  ship  (though  that  makes  no  difference). 

The  plaintiff  therefore  was  not  answerable  for  this  loss  of  the  ship, 

pafc  to  tlic  dclivcrin;.'  port.  .Aftorwnrds  in  iiiiotlior  cinisc,  tlic  sittiiii:-*  nftiT  tliis 
tpriii  at  Ciiildliall,  l)ot\v('pn  ('haiidlcr  and  .Meade,  in  sucii  an  action,  it  apjx'an'tl 
that  the  plaintilF  was  liirr-d  l>y  the  (h-fendant  at  Carolina  to  serve  mi  hoard  tho 
Jane  xhiop,  whereof  the  defendant  wan  master,  from  Carolina  to  lOn-xhind,  at 
i'.i  per  month;  tliat  he  served  two  months,  then  the  ship  was  took  hv  a  French 
privateer  and  ransomed  ;  an«l  jnst  as  she  eanie  olT  of  Plymouth,  the  plaintilT  was 
impre-4«ed.  Ae.,  and  then  the  ship  enme  safe  into  the  river  Thames,  wlierc  she 
disf)os4-r|  of  her  ear^'o;  and  by  Hoi.T,  the  plaintifT  can  have  no  wapes,  the  nhip 
having  heen  took  hy  the  enemy  and  ransomed.  Mr.  Raymond  insisted  that  in 
Miieh  eases  he  should  reeover  i>ro  rata,  and  that  the  usape  amonp  merehants 
was  so;  which  lloi.T  sairl  if-he  could  prove,  it  would  do;  hut  wanting  proof 
of  it,  tlie  fdaintitT  was  non'<uited." 

.\s  to  the  efTeet  on  an  oldi^ation,  of  the  act  of  a  foreign  state,  see  I'aradino 
V.  .Jane  (1071)  Aleyn.  2(1;  Hernnman  v.  Hawden  (17(1<1)  .'»  Uurr.  1841;  Tratt 
V.  C'ufT,  quoted  hy  the  court  fnun  a  MSS.  note  in  Thompson  r.  Rowcrofb 
(IftO.T)  4  Kast.  .14.  4.1;  Herpslrom  r.  .Mills  (1«00)  1  Ksp.  N.  V.  .10;  Beale  v. 
ThompHon   (1804)   4  Knst,  540.— Ei>. 


CHAP.    II.]  MENETOXE    V.    ATIIAWES.  645 

And  if  the  plaintiff  be  not  liable  for  the  loss  of  the  ship,  he  is  entitled 
to  be  paid  for  his  work  and  materials.  The  materials  must  be  con- 
sidered as  having  been  delivered.  The  merchant  always  pays  £5  for 
the  hire  of  a  dock,  and  so  he  agreed  to  do  in  ihis  case.  And  these 
materials  were  delivered  on  board  his  ship  in  this  dock. 

When  tithes  are  set  out,  they  are  thereby  vested  in  the  parson,  and 
he  may  maintain  trespass  for  any  injury  done  to  them. 

The  defendant  might  have  sold  this  ship  while  it  was  in  the  dock, 
and  these  materials  would  have  been  part  of  it.  The  fixing  them 
to  the  ship  was  a  delivery  of  them.  The  adjunct  must  go  with  the 
subject.  Dr.  Cowell  in  treating  of  the  various  modes  of  acquiring 
property,  is  of  this  opinion. 

Mr.  Dunning,  contra,  for  the  defendant. 

The  question  is,  "Whether  the  plaintiff  is  entitled  to  be  paid  by 
the  defendant  for  that  work  and  labor  from  which  the  defendant 
neither  did  nor  could  reap  any  advantage." 

The  plaintiff  was  obliged  to  redeliver  the  ship  safe,  having  under- 
taken to  repair  it. 

The  defendant  has  had  no  benefit  from  the  plaintiff's  labor  or 
materials;  neither  was  the  plaintiff's  undertaking  completely  per- 
formed. 

Carriers  and  hoy-men  cannot  be  entitled  to  be  paid  for  carrying 
things  that  perish  before  they  are  delivered ;  nor  Jewellers,  for  setting 
a  jewel  that  is  destroyed  before  it  is  set.  So  a  tailor,  where  the  cloth 
is  destroyed  before  the  suit  is  finished.  So  of  any  unfinished,  incom- 
plete undertaking. 

As  there  is  no  express  agreement  to  support  this  action,  the  court 
will  not  imply  any.' 

Mr.  Murplnj  in  reply.  As  to  the  defendant's  not  having  had  the 
benefit  of  the  repair.  There  is  no  reason  why  the  shipwright  should 
not  be  paid  for  his  work  and  labor  and  materials.  "Digest,"  title 
de  negotiis  gesiifi.     Tlie  defendant  might  have  insured  his  ship. 

Nothing  can  be  due  to  a  carrier  or  hoy-man  till  the  delivery  of 
the  goods  at  the  destined  place.  Rut  these  materials  were  delivered, 
and  the  work  and  labor  actually  done. 

Suppose  a  horse,  sent  to  a  farrier's  to  be  cured,  is  burnt  in  the 
stable  ])efore  the  cure  is  completely  effected ;  shall  not  the  farrier  be 
paid  for  wliat  he  has  already  done? 

A  pawnbroker,  if  the  pawn  is  destroyed  by  the  act  of  God.  shall 
recover  the  money  lent. 

Lord  Mansfield.  This  is  a  desperate  case  for  the  defendant 
(though  compassionate).  T  do\il)t  it  is  very  ditluult  for  him  to  main- 
tain bis  point.  Besides  it  is  stated,  "That  he  paid  £5  for  the  use  of 
the  dock." 

Mr.  Justice  Wilmot.  So  that  it  is  like  a  horse  that  a  farrier  was 
curing  being  burnt  in  the  owner's  own  stable. 


G4G  IIAYXES    r.    SECOND    BAPTIST    CHURCH.  [BOOK    II. 

Mr.  Attorney-General  being  rotainod  to  argue  it  for  the  defendant, 

The  court  offered  to  hear  a  second  argument  from  him,  if  he 
thought  he  could  maintain  his  case,  but  seemed  to  think  it  would  be 
a  very  dirtlcult  matter  to  do  it. 

Mr.  Attorney-General  appeared  to  entertain  very  little  hope  of 
success :  however,  he  desired  a  day  or  two  to  consider  of  it.     But 

Mr.  Recorder  now  moving  "That  the  postea  might  be  delivered  to 
the  plaintiff," — 

The  Attorney-General  did  not  oppose  it. 

And  a  Rule  was  made  accordingly, 

That  the  postea  be  delivered  to  the  plaintiff.^ 


HAYXES,   SPEXCER  &  COMPAXY,   APPELLAXTS   v.   SEC- 
OXD  BAPTIST  CHURCH  OF  ST.  LOUIS,  RESPOXDEXT. 

St,  Louis  Couut  of  Appeals  of  Missouri,  1882. 

[12  Missouri  Appeal  Reports,  536.^] 

Bakewell,  J.,  delivered  the  opinion  of  the  court. 

This  is  an  action  by  an  incorporated  company,  to  recover  of  defend- 
ant, which  is  a  corporation,  tlie  value  of  certain  pews  and  other  wood- 
work of  a  church  edifice,  and  labor  and  materials  furnished  l)y  plain- 
tiff to  defendant.  The  cause  was  tried  by  the  court,  a  jury  being 
waived,  and  the  finding  and  judgment  were  for  the  defendant. 

There  are  record  admissions  and  testimony  tending  to  sjiow  the  fol- 
lowing state  of  facts:  Defendant  was  erecting  a  house  of  worship  in 
St.  Louis.  It  let  out  the  work  to  different  contractors,  having  separate 
contracts  with  the  mason,  carpenter,  and  other  mechanics.  The  gen- 
eral din-ction  of  the  work  was  under  the  control  of  an  architect  and 
superintendent  employed  by  defendant.  Defendant  kept  the  building 
insured,  increasing  the  insurance  from  time  to  time  as  the  building 
progressed,  insuring  far  enough  ahead  to  cover  any  work  after  it  was 

'Hut  if  full  iM-rfornianco  or  acroptanro  l>c  nn  Pxpro'As  condition  precedont 
to  payniont,  tlio  Kn^'lith  courts  deny  ii  rc-covory  wIhtp  tlif  sulijoct  ninttor  is 
do'*troy«-<l  without  the  fatilt  of  citlicr  party  to  tiic  contract.  Applohy  v. 
MyfTH  (lHrt7)  I  J.  R.  2  ('.  1'.  (5.")1.  If,  however,  the  defendant  has  rendered  ner- 
vices  and  the  Huhject  mutter  is  accidentally  destroyed  without  either  party 
bein;*  in  fault,  the  plaintifT  cannot  recover  any  payments  he  may  have  made. 
Ann\n-Kn\]}tinn  Xnvipation  Co.  r.  Rennie  (  iHTf))  T..  R.  10  C.  P.  271.  That  is  to 
Htty,  the  loss  is  left  where  it  falls. 

See  Hutterndd  r.  Hryan  (1S!)1)  ir):{  Mass.  TjlT,  post,  where  the  subject  is 
ilisruHKcdund   the  autluiriticM  collected. — ICl). 

'AfTirmed  on  appeal  in  88  Mo.  285. — Ed. 


CHAP.    II.]  IIAYNES   V.   SECOXD   BAPTIST   CHURCH.  647 

done.  On  January  2,  1879,  the  building  caught  fire  from  some  unex- 
plained accident.  The  answer  alleges  that  this  was  without  the  fault 
or  negligence  of  defendant,  and  the  reply  denies  this,  though  it  ad- 
mits that  the  fire  was  accidental.  The  fire  destroyed  the  church  and 
everything  in  it. 

Tlie  written  contract  between  plaintiff  and  defendant  provides  that 
plaintift'  shall  make,  finish,  and  put  up  complete,  furnishing  all  labor 
and  materials,  the  pews  in  the  audience-room  and  in  the  gallery,  the 
pulpit,  and  the  screen  over  the  pulpit  and  baptistry,  and  the  organ 
front:  the  work  to  be  of  a  described  character  and  quality,  and  sub- 
ject to  the  approval  of  the  architect  of  defendant;  for  the  sum  of 
$-1,800,  to  be  paid  on  the  completion  and  acceptance  of  the  work. 
The  work  is  to  be  put  up  complete,  on  or  before  December  1,  1873, 
under  a  forfeit  of  $10  a  day  for  every  day's  delay  beyond  that  time. 

At  the  time  of  the  fire,  defendant  was  engaged  in  putting  up  the 
pews.  The  gallery  pews  were  partly  up;  none  of  the  pews  in  the 
audience-room  were  up,  but  they  were  scattered  about  on  the  floor; 
two  pieces  of  the  organ  loft  were  in  the  building,  but  not  put  up.  The 
baptistry-screen  was  partly  up,  and  all  of  it  was  in  the  building.  It 
would  have  taken  five  men  about  two  weeks  to  set  in  order  in  the 
church  what  remained  of  plaintiff's  contract.  While  the  pews  were 
being  put  up,  some  slight  change  from  the  contract  was  made  in  the 
construction  of  some  pews,  at  the  suggestion  of  the  building  com- 
mittee of  defendant;  this  change  was  nearly  completed  when  the  fire 
broke  out.  The  work  and  materials  furnished  were  of  the  character 
and  quality  required  by  the  contract,  and  reasonably  worth  the 
amounts  charged  in  the  bill  of  particulars  filed  with  the  petition. 
Some  payments  had  been  made,  and  the  balance  claimed  remains  un- 
paid. 

If  money  is  to  be  paid  when  the  work  is  done,  non-performance  of 
the  work  is  a  good  defence;  and  where  there  has  been  a  partial  per- 
formance only,  and  not  a  performance  of  what  is  substantial  in  the 
contract,  as  a  general  rule,  plaintiff  cannot  recover.  The  rule  always 
applies  where  the  non-performance  is  voluntary  on  the  plaintiff's  part. 
But  where  the  non-performance  is  caused  by  the  defendant,  or  by  the 
act  of  God,  the  rule  is  not  always  applied,  and  in  this  country  (Cutter 
V.  Powell,  6  Term  Eep.  320),  has  not  been  followed,  but,  in  contracts 
for  service,  sickness  and  death  have  been  held  to  excuse  the  non-per- 
formance of  an  entire  contract. 

If  a  workman  undertakes  to  build  a  house,  to  be  paid  when  the 
house  is  done,  he  cannot  demand  pa^nnent  until  he  has  complied  with 
his  contract;  and  if  the  house  is  destroyed  by  inevitable  accident,  it 
will  be  the  loss  of  the  contractor.  And  so  we  held  in  Richardson  v. 
Shaw,  1  Mo.  App.  234,  that,  where  the  contract-price  of  the  build- 
ing is  to  be  paid  in  instalments,  on  the  completion  of  certain  specified 
portions  of  the  work,  though  if  the  house  be  destroyed  by  accident. 


648  HAYXES    r.    SECOND   BAPTIST   CHURCH.  [BOOK    II. 

the  employer  would  be  bound  to  pay  the  instalments  then  due,  yet  he 
would  not  be  responsible  for  the  intermediate  work  and  materials.^ 

The  case  before  us  is  not,  however,  an  undertaking  to  build  a  house, 
but  a  contract  to  do  certain  wood-work  in  an  erection  under  the  con- 
trol of  defendant  and  not  under  the  control  of  jjlaintiir.  There  is  a 
difference.  In  the  first  case,  the  defendant  makes  no  agreement  as 
to  the  existence  of  the  building;  in  the  last  case,  the  work  contracted 
for  cannot  Ije  done  unless  the  building  exists  while  it  is  being  done 
and  until  it  is  completed,  and  it  may  be  said  that  there  is  an  implied 
agreement  that  the  i)uilding  shall  be  in  existence  as  a  condition  prece- 
dent to  doing  the  work  upon  it.  It  happens  that  contracts  on  their 
face  appear  to  be  obligatory  on  one  party  only,  when  it  was  manifestly 
the  intention  of  the  parties,  and  a  i)art  of  the  consideration,  that  there 
should  be  a  corelative  obligation  on  the  other  party.  And  "if  the  act 
to  be  done  by  the  party  binding  himself  can  only  he  done  upon  a  cor- 
responding act  being  done  or  allowed  by  the  other  party,  an  obliga- 
tion by  the  latter  to  do  or  allow  to  be  done  the  act  or  thing  necessary 
for  the  completion  of  the  contract,  will  be  necessarily  implied."  Per 
Hough,  J.,  in  Lewis  v.  Insurance  Co.,  61  Mo.  538. 

It  is  a  maxim  that  irs  prrit  domino  suo;  and  the  rule  of  the  com- 
mon law  is  the  civil-law  rule,  that  if  one  is  employed  in  making  up 
the  materials  or  adding  his  labor  to  the  property  of  the  employer,  the 
risk  is  with  the  owner  of  the  thing  with  which  the  labor  is  incor- 
porated. And  upon  grounds  applicable  to  the  general  contract  of  hire, 
in  the  absence  of  any  sfjccial  agreement  or  general  usage,  if  the  thing 
for  which  materials  were  furnished  is  destroyed  before  the  work  is 
done,  the  employer  must  pay  for  the  work  and  materials,  though  they 
are  lost  to  him.  ^renetone  v.  Athawes,  3  Burr.  1592.  But  Story  lays 
down  the  doctrine  that  where  there  is  a  contract  to  do  work  on  a 
thing  by  the  job,  and  the  thing  accidentally  perishes,  the  workman 
would  not  be  entitled  to  compensation  pro  tanto  up  to  the  time  of  the 
destruction,  because  the  job  must  be  treated  as  an  entirety  and  be  com- 
pleted l)efore  the  compensation  under  the  agreement  would  be  due. 
And  Appleby  v.  Myers  and  Bruml)y  i'.  Smith,  which  will  be  consid- 
ered aftenvards,  arc  referred  to  in  the  notes  to  the  later  ('(litions. 
Story  on  Bail.  (f)th  od.),  sect.  426  a,  ot  srq.  Tie  admits,  however,  that 
Pothi«'r  holds  a  difTcrcnt  opinion,  and  thinks  that,  even  then,  the 
workman  should  recover  pro  latilo.  But  the  observations  of  Story  go 
only  to"  some  of  the  general  principles  applicable  to  the  present  case, 
and  he  does  not  consider  the  case  in  which  the  rrs  i.s  in  the  custody 
and  control  of  the  owner,  and  in  which  the  contract  implies  that  it 
shall  remain  in  existence  to  receive  the  work. 

Brumby  v.  Smith.  .'{  ;\Ia.  123,  was  decided  in   IS  11,  and  is  directly 

•So*".  Cliiiljr.n  r.  Toiidy    (1H7S)    Ti  W,  N.  C.    (Pn.)    528;  Siegel  v.  Eaton  & 
Prince  Co.  (1897)   \r,r,  III.  .^,.-,0.— !•:». 


CHAP.    II.]  IIAYXES    V.    SECOND    BAPTIST    CHURCH.  649 

in  point  for  respondent.  A  workman  agreed  to  complete  the  carpenter- 
work  on  a  house,  and  to  receive  a  certain  sum  on  the  completion  of  the 
work,  his  employer  furnishing  the  materials.  The  house  and  mate- 
rials were  destroyed  by  fire,  without  the  fault  of  the  workman,  the 
liouse  being  in  tlio  possession  of  the  employer.  It  is  held  that  the 
workman  could  not  recover  a  pro  rata  compensation.  The  case  is  put 
solely  upon  the  ground  that,  by  the  express  terms  of  the  contract,  the 
hibor  was  not  to  be  paid  for  until  the  work  was  completed,  and  that, 
whenever  this  is  rendered  impossible  without  the  act  of  the  employer, 
there  can  be  no  recovery. 

But  principles  applicable  to  the  case  at  bar  seem  to  have  been  much 
more  carefully  considered  and  applied  in  the  case  of  Appleby  v.  Myers, 
1  L.  R.  C.  P.  614,  decided  in  1866.  In  that  case,  plaintiffs  con- 
tracted with  defendant  to  erect,  upon  premises  in  defendant's  posses- 
sion, a  steam  engine  and  machinery,  the  w^ork  being  by  the  contract 
divided  into  ten  different  parts,  and  separate  prices  fixed  upon  each 
])art,  no  time  being  fixed  for  payment.  All  the  parts  of  the  work 
\\ere  far  advanced  towards  completion,  and  some  of  them  so  nearly 
finished  that  the  defendant  had  used  them  for  the  purposes  of  his 
business,  but  no  one  of  them  was  absolutely  complete,  though  a  con- 
siderable proportion  of  the  materials  for  that  purpose  was  upon  the 
Ijuilding,  when  the  whole  premises,  with  the  machinery  and  materials, 
were  destroyed  by  an  accidental  fire.  It  was  held  unanimously  by 
the  judges  of  the  common  pleas,  that  plaintiffs  were  not  entitled  to  re- 
cover the  whole  contract-price;  but  that,  inasmuch  as  the  machinery 
was  to  be  fixed  to  defendant's  premises  so  that  the  parts  of  it  when, 
and  as,  fixed,  would  become  his  property  and  be  subject  to  his  do- 
minion, and  the  contract  must  be  taken  to  involve  an  implied  promise 
on  the  defendant's  part  to  keep  up  the  building,  they  were  entitled  to 
be  paid  as  upon  an  implied  contract,  the  value  of  the  work  and  mate- 
rials actually  done  and  sup]ilied  by  them  under  the  agreement.  The 
court  says  that  the  contract  falls  within  a  qualification  of  the  prin- 
ciple that,  where  there  is  a  positive  contract  to  do  a  thing  in  itself  not 
unlawful,  the  contractor  must  perform  it  or  pay  damages.  The  quali- 
fication is  this:  That,  in  the  absence  of  any  express  or  implied  war- 
ranty that  the  thing  shall  exist,  the  contract  is  not  to  be  construed  as 
a  positive  contract,  but  as  subject  to  an  implied  condition  that  the 
parties  shall  be  excused  by  the  perishing  of  the  thing  before  the 
breach.  As  the  machinery  was  to  be  so  affixed  to  the  building,  that 
part  of  it  would  become  defendant's  property  and  subject  to  his  do- 
minion, it  is  held  that  there  is  an  implied  term  that  defendants  shall 
provide  flie  buildings  and  keep  them  in  a  fit  state.  Xo  decision 
(lireefly  in  point  was  cited  to  the  court.  But  counsel  referred  to  Story 
on  Bnihuents,  eaeli  relying  on  passages  in  his  favor. 

On  appeal,  in  the  Kxciiequor  Chamber  ('2  L.  R.  C.  P.  650).  the 
judgment  was  reversed.    On  the  argument,  the  Alabama  case  (Brum- 


650  IIAYNES    V.    SECOND    BAPTIST    CHURCH.  [bOOK    II. 

by  V.  Smith,  supra)  was  cited.  The  court  did  not  agree  with  the 
court  below  in  thinking  that  there  was  an  absolute  {)roniise  that  the 
premises  should  continue  tit  to  receive  the  work ;  and  iield  that,  as  the 
premises  were  destroyed  without  fault  on  either  side,  the  misfortune 
excused  both  parties  from  further  performance  of  the  contract,  but 
gave  a  cause  of  action  to  neither;  and  .said  that,  even  on  the  supposi- 
tion that  the  materials  had  become  unalterably  fixed  to  the  defend- 
ant's premises,  that  the  plaintitf,  in  their  opinion,  could  recover  noth- 
ing under  such  a  contract  as  the  one  before  them,  unless  the  work  was 
completed. 

Xiblo  r.  Binsse,  1  Keyes,  477,  was  decided  in  18G4,  in  New  York, 
reversing  the  supreme  court.  The  premises  were  destroyed  by  an  ac- 
cidental fire,  without  any  fault  of  plaintiff  or  defendant.  Plaintiff 
undertook  to  put  in  steam-pipes  and  heaters  at  a  price  stipulated  to  be 
paid,  and  was  working  on  the  job  when  the  fire  occurred.  It  was  held 
that,  where  the  owner  of  the  property  retains  possession,  there  is  an 
implied  obligation  for  him  to  have  the  premises  ready  for  the  labor 
to  be  performed  upon  them,  and  that  the  destruction  of  the  ])remises 
put  the  defenilant  in  default,  and  that  i)laintitf  was  entitled  to  re- 
cover for  the  work  performed  up  to  the  time  of  the  fire.  In  this  case, 
the  history  of  the  litigation  is  just  the  reverse  of  that  in  Appleby  v. 
Myers.  The  referee  and  the  supreme  court  found  for  defendant  (44 
Barb.  54),  holding  that  accidental  fire  is  not  to  be  called  the  act  of 
God  in  such  a  sense  as  to  excuse  from  the  performance  of  a  contract. 
The  court  held  that  the  impossibilitj'  which  excuses  must  arise  without 
human  intervention.  In  this  ground,  the  supreme  court  differs  from 
the  English  judges,  who  all  held  that  the  fire  occurring  without 
plaintiff's  fault  excused  him  from  performing  the  contract,  and  re- 
lieved him  from  all  liability  for  its  non-performance. 

In  a  very  recent  case  in  Wisconsin  (Cook  v.  McC'abe,  5,']  Wis.  250), 
it  was  held  that,  where  there  was  not  an  absolute  and  indivisible  con- 
tract to  build  a  complete  hou.^c  for  a  s])e(ific  sum,  but  only  a  contract 
to  do  a  part  of  the  work  and  furnish  a  part  of  the  materials,  the  re- 
mainder to  be  otherwise  provided  for  from  time  to  time  by  the  land- 
owner, though  the  price  was  a  (i.xed  aggn>gate  sum,  and  no  |)ayment 
was  to  be  made  until  the  house  was  comjdeted,  and  the  j)art  built  was 
destroyed  by  fire  before  the  compIetii>n  of  \ho  whole,  the  eontrflctor 
might  recover  for  work  and  materials  (JDiie  jind  furnished  by  him, 
especially  where  the  owner  of  the  land  treated  Ihe  house  as  his  own  by 
procuring  insurance  and  receiving  tbe  insurance-money. 

In  IllinoiH,  while  it  is  held  (Schwartz  v.  Saunders,  40  111.  18), 
that,  where  one  undertakes  un<ler  a  contract  to  do  a  thing  not  of  itself 
impossible,  he  must  do  it  before  he  can  reap  any  advantage  of  the  con- 
tract, it  is  nevertlx'less  held  (  Kawson  r.  Clark,  70  111.  (\'*(\)  that,  where 
one,  under  a  contract  with  the  owner  of  a  building  to  put  into  it  cer- 
tain iron-work,  had  completed  the  work,  except  putting  it  into  the 


CHAP.    II.]  IIAYNES    r.    SECOXD   BAPTIST    CHURCH.  651 

house,  and  the  house  was  in  course  of  erection,  and  was  not  ready  to 
receive  the  iron-work  when  it  was  completed,  and  the  building  was 
burned  before  the  iron  could  be  put  in,  the  workman  was  entitled  to 
recover,  as  he  was  not  in  default  and  the  defendants  were  Ijound  to 
provide  a  building  to  receive  the  iron-work,  and  they,  and  not  plain- 
tiff, are  to  be  held  to  have  assumed  the  risk  of  a  destruction  of  the 
building  by  fire. 

And  in  Massachusetts  (Lord  v.  Wheeler,  1  Gray,  282),  it  was  held 
that  a  workman  who  had  contracted  to  repair  a  house  for  a  certain 
sum,  and  who  liad  nearly  completed  the  repairs  when  the  house  was 
destroyed  by  an  accidental  fire,  was  excused  from  the  completion  of 
his  contract  and  entitled  to  recover  for  the  repairs  due.  But  this 
case  is  expressly  put  upon  the  ground  that  when  the  repairs  were 
substantially  done,  the  defendant  entered  and  occupied,  and  that  such 
use  and  employment  was  a  severance  of  the  contract  and  an  acceptance 
pro  tanto. 

In  Texas  they  do  not  follow  Appleby  v.  Myers,  but  hold,  in  accord- 
ance with  the  established  doctrine  of  that  state  as  to  the  apportionabil- 
it}'  of  contracts,  that,  where  one  has  undertaken  to  furnish  materials 
and  do  the  wood-work  to  finish  defendant's  brick  dwelling  and  to  turn 
over  the  building  complete  by  a  certain  day,  for  the  specified  gross 
sum,  if  the  building  is  destroyed  without  plaintifi"s  fault,  by  fire, 
while  his  work  is  unfinished,  he  may  recover  for  the  work  and  mate- 
rials furnished. 

The  weight  of  authority  in  America  certainly  authorizes  the  con- 
clusion that,  on  the  facts  of  this  case  as  we  have  stated  them,  plaintiff 
was  entitled  to  recover.  And  we  think  that  reason  as  well  as  authority 
preponderates  in  favor  of  this  view.  Plaintiff  had  not  control  of  the 
building,  and  defendant  had;  plaintiff  had  no  authority  over  his  co-. 
contractors  and  their  employees,  nor  the  right  to  exclude  anybody 
from  the  building  who  might  be  there  by  the  permission  of  the  build- 
ing committee.  He  could  not  take  steps  to  guard  against  fire,  as  might 
be  done  by  those  having  control  of  the  building.  The  fire  happened 
by  human  agency,  and  not  from  any  irresisti1>le  vis  major.  It  is  not 
pretended  that  the  house  was  struck  l)y  lightning;  and,  in  stipulating 
that  this  wood-work  should  be  completed,  it  must  have  been  under- 
stood by  plaintiff,  as  it  must  also  have  been  understood  by  defendant, 
that  this  was  upon  the  implied  condition  that  the  building  should 
stand  until  the  expiration  of  the  time  accorded  to  plaintHf  within 
which  he  was  to  complete  his  work.  Where  the  o\\-ner  of  the  prop- 
erty retains  possession  and  contracts  for  work  to  be  done  upon  it  while 
in  his  custody,  there  is,  we  think,  an  implied  ol)ligation  resting  upon 
him  to  have  it  in  readiness  for  the  work  to  be  performed  u]ion  it,  and 
the  plaintiff  was  not  bound  to  provide  in  the  contract  for  the  default 
of  the  other  party  in  the  matter  of  this  obligation.  So  far  as  regards 
an  impossibility  arising  from  the  act  of  God,  neither  party  need  pro- 


65'J  YOUNG    V.    CITY    OF    ClIICOPEE.  [BOOK    II. 

vide  against  that  in  his  contract;  but  from  an  impossibility  arising 
from  human  agency,  ami  an  accidental  fire  nuiking  it  impossible  to 
finish  the  buikling  in  time  to  receive  the  wood-work,  it  would  seem 
that  the  owner  and  occupier  of  the  building,  rather  than  one  having 
access  to  it  as  one  of  many  contractors  employed  in  its  repair  or  con- 
struction, should  provide.* 

The  instructions  need  not  be  set  out  or  commented  upon.  We  think 
that  the  court  erred  in  giving  a  declaration  of  law  to  the  effect  that, 
upon  the  pleadings  and  evidence,  plaintiff  is  not  entitled  to  recover. 
Other  instructions  were  given  whieh  cannot  be  reconciled  with  the 
views  expressed  in  this  opinion. 

Our  attention  is  called  to  the  statutory  provision  that  no  "suit  shall 
be  maintained  against  any  tenant  or  other  person  in  whose  house  or 
apartment  fire  shall  accidentally  take  place;  nor  shall  any  recompense 
be  made  by  any  such  person  for  any  damages  occasioned  thereby."  Kev. 
Stats.,  sect.  GG7.  This  section  was  not  intended  to  have  any  applica- 
tion to  a  case  such  as  that  before  us.  Plaintiff  does  not  seek  to  recover 
for  damages  done  to  him  by  the  fire,  but  seeks  to  recover  the  value 
of  his  work,  labor,  and  materials  furnished  to  defendants,  notwith- 
standing their  destruction. 

The  judgment  is  reversed  and  remanded.    All  the  judges  concur. 


In  Young  v.  City  of  Chicopee  ( 15)04)  18(i  Mass.  518,  II.vMMoxn.  J., 
delivered  the  opinion  of  the  court  as  follows:  This  is  an  action  to 
recover  for  work  and  materials  furnished  midfr  a  wi-itteii  contract, 
providing  for  the  repair  of  a  wooden  bridgt'  forming  a  j)art  of  the 
highway  across  the  Connecticut  Kiver.  While  the  work  was  in 
progress  the  bridge  was  totally  destroyed  by  fire  without  the  fault  of 
.either  party,  so  that  the  contract  could  not  be  performed. 

The  specifications  recpiired  that  the  timber  and  other  wood-work  of 
the  carriage  way,  wherever  decayed,  should  be  replaced  by  sound  nui- 
terial  securely  fastened,  so  that  the  way  should  be  in  a  "complete  and 
substantial  condition."  As  full  compen.sation  both  for  work  and 
materials  the  j)laintifr  was  (o  receive  a  certain  suiu  per  thousand  feet 
for  the  luiid)er  used  "on  measurements  made  after  laying  and  certified 
by  both  engineers,"  or,  in  other  words,  the  amount  of  the  plaintiff's 
compensation  wa.s  measured  by  the  number  of  feet  of  ni>w  material 
wrought  into  the  bridge.     'I'liat  the  pulilic  travel  miglil   not  be  inter- 

'See,  Cook  r.  McCal.o  (IKSI)  .-,:{  \Vi>*.  '2.^)0;  Cli'siry  r.  S«hi.-r  (IHTC)  120 
MiiHM.  210;    KnwHon  r.  Cliiik    (  ISJ-O    711   111.  (If)*! ;    Haysrll   r.  Stfrlinj:  Coal  Co. 

(18JM))  40  W.  Vn.  loH.  And  ho  n  jiro  rata  recovery  lias  luM-n  |n'niii(ti'(l  wliore 
111*'  contract  wuh  not  performed  ciwinj;  to  the  inipossihility  of  detect  in;;  latent 
<lefe<tM  in  the  materials  fiirnixlied.     (Jove  &   Co.  r.   Island  City  Mercantile  Co. 

(  IHOO)  19  Orejjon.  Srt3 ;  or  where,  on  n  Hnle,  delivery  heeame  impoHHihle  owinp  to 
the  dcHtnjction  of  the  siihject  ninttcr,  Murray  r.  Richards  (1828)  1  ^Vcnd. 
58.— El). 


C11A1>.    II.J  YOUNG    V.    CITY    OF    CIlICOl'EE.  653 

fered  with  more  than  was  reasonably  necessary,  the  contract  provided 
that  no  work  should  he  begun  until  material  for  at  least  one  half  of 
the  repairs  contemplated  should  be  '"upon  the  job."  With  this  con- 
dition the  plaintilf  complied,  tiie  lumber,  which  at  the  time  of  the 
fire  had  not  been  used,  being  distributed  "all  along  the  bridge"  and 
npon  the  river  banks.     Some  of  this  lumber  was  destroyed  by  the  fire. 

At  the  trial  the  defendant  did  not  dispute  its  liability  to  pay  for 
the  work  done  upon  and  materials  wrought  into  the  structure  at  the 
time  of  the  fire;  (Angus  v.  Scully,  176  Mass.  357,  and  cases  there 
cited;)  and  the  only  question  before  us  is  whether  it  was  liable  for 
the  damage  to  the  lumber  which  was  distributed  as  above  stated  and 
had  not  been  used. 

It  is  to  be  noted  that  there  had  been  no  delivery  of  this  lumber  to 
the  defendant.  It  was  brought  "upon  the  job"  and  kept  there  as  the 
lumber  of  the  plaintiff.  The  title  to  it  was  in  him  and  not  in  the  de- 
fendant. Xor  did  the  defendant  have  any  care  or  control  over  it.  Xo 
part  of  it  belonged  to  the  defendant  until  wrought  into  the  bridge. 
The  plaintiff  could  have  exchanged  it  for  other  lumber.  If  at  any 
time  during  the  progress  of  the  work  Ijofore  the  fire  the  plaintiff  had 
refused  to  proceed,  the  defendant  against  his  consent  could  not  law- 
fully have  used  it.  Indeed  had  it  not  been  destroyed  it  would  have 
remained  the  property  of  the  plaintiff  after  the  fire.  Xor  is  the  situa- 
tion changed,  so  far  as  respects  the  question  before  us,  by  the  fact  that 
the  lumber  was  brought  there  in  compliance  with  the  condition  relat- 
ing to  the  commencement  of  the  work.  This  condition  manifestly  was 
inserted  to  insure  the  rapid  progress  of  the  work,  and  it  has  no  mate- 
rial bearing  upon  the  rights  of  the  parties  in  relation  to  the  lumber. 
It  is  also  to  be  borne  in  mind  in  this  connection  that  the  compensa- 
tion for  the  whole  job  was  to  be  determined  by  the  amount  of  lumber 
wrought  into  the  bridge. 

The  contract  was  entire.  By  the  destruction  of  the  l^ridge  each 
party  was  excused  from  further  performance  and  the  ])laintiff  could 
recover  for  partial  performance.  The  principle  upon  which  the  plain- 
tiff can  do  this  is  sometimes  said  to  rest  upon  the  doctrine  that  there 
is  an  implied  contract  upon  the  owner  of  the  structure  upon  which  the 
work  is  to  be  done  that  it  shall  continue  to  exist,  and  therefore,  if  it 
is  destroyed,  even  without  his  fault,  still  he  must  be  regarded  as  in 
default  and  so  liable  to  pay  for  what  has  been  done.  Xiblo  v.  Binsse, 
1  Keyes,  476.  Whelan  v.  Ansonia  Clock  Co.  97  X.  Y.  293.  In  Butter- 
field  V.  Byron,  153  Mass.  517,  523,  it  was  said  by  Ivxowltox.  J.  that 
there  was  "an  implied  assumpsit  for  what  has  properly  been  done  by 
either  [of  the  parties],  the  law  dealing  with  it  as  done  at  the  request 
of  the  other,  and  creating  a  liability  to  pay  for  it  its  value."  In  what- 
ever way  the  principle  may  be  stated,  it  would  seem  that  the  liability 
of  the  owner  in  a  case  like  this  should  be  measured  by  the  amount  of 
the  contract  work  done  which,  at  the  time  of  the  destruction  of  the 


654  BUTTERFIELD    V.    BTROX.  [bOOK    II. 

structure,  had  become  so  far  identified  with  it  as  that  but  for  the  de- 
struction it  would  have  enured  to  hira  as  contemplated  by  the  con- 
tract. 

In  the  present  case  the  defendant,  in  accordance  with  this  doctrine, 
should  be  held  liable  for  the  labor  and  materials  actually  wrought  intt) 
the  bridge.  To  that  extent  it  insured  the  plaintiiL  But  it  did  not 
insure  the  plaintiff  against  the  loss  of  lumber  owned  by  him  at  the 
time  of  the  fire,  which  had  not  then  come  into  such  relations  with  the 
bridge  as,  but  for  the  fire,  to  enure  to  the  benefit  of  the  defendant  as 
contemplated  by  the  contract.  The  cases  of  Haynes  v.  Second  Ba])tist 
Church,  ys  Mo.  2S5,  and  Kawson  v.  Clark,  TO  111.  tioG,  cited  by  the 
plaintiff,  seem  to  us  to  be  distinguishable  from  this  case. 

The  exceptions  therefore  must  be  sustained  and  the  verdict  set 
aside.  In  accordance  with  the  terms  of  the  statement  contained  in 
the  bill  of  exceptions;  judgment  should  be  entered  for  the  plaintiff  in 
the  sum  of  $584  damages,  and  it  is 

So  ordered. 


BUTTERFIELD    r.    BYROX. 

Supreme  Judici.a.l  Court  of  Massachusetts,  1891. 

[153  Massachusetts,  517.] 

CoNTR(VCT  brought  in  the  name  of  the  plaintiff  for  the  benefit 
of  certain  insurance  companies,  for  breach  of  a  building  contract 
entered  into  l)etwecn  the  ])laintiff  and  the  defendant.  At  the  trial 
in  the  Sujicrior  Court,  before  Bakkkij,  J.,  there  was  evidence  tending 
to  show  the  following  facts:' 

A  builder  and  a  landowner  entered  into  a  contract,  by  whicli  the 
former  was  to  "make,  erect,  build,  and  finish"  a  hotel  upon  the 
land,  and  the  latter  was  to  do  the  grading,  excavating,  stonework, 
brickwork,  painting,  and  plumbing,  and  pay  a  certain  sum  as  follows: 
each  month  seventy-five  per  cent,  of  the  value  of  the  work  of  the 
preceding  month,  the  balance  in  thirty  days  after  comjiletion.  The 
building  was  destroyed   by  lightning  shortly  befon»  completion. 

At  the  trial,  the  plaintiff  contended  tiiat  he  was  entitled  to  recover 
in  his  action  (1)  the  whole  of  the  sum  of  $r),!)14.n8  |$5,()52.30  for 
advances  made  to  the  defendant,  and  $!,*-?(;  1.78  for  work  done  and 
materials  by  the  plaintiff  in  laying  the  foundation],  (2)  $.'i8  for 
certain  shingles  and  window  weights  that  had  been  .saved  from  the 
fire  and  carried  a>vay  l)y  the  defendant,  and  (3)  the  amount  for- 
feited un<ler  the  contract  at  the  rate  of  $15  a  day  from  June  10,  1880, 
to  the  date  of  the  writ. 

Upon  these  facts  the  judge  directed  a  verdict   for  the  defendant, 

'The  stAtemcnt  of  facts  is  Hhortcncd  and  modified. — Ed. 


CHAP.    II.]  BUTTEKFIELD    V.    BYRON.  655 

and  reported  the  case  for  the  determination  of  this  court,  such  order 
to  be  made  as  the  court  might  direct. 

The  case  was  argued  at  tlie  bar  in  September,  1890,  and  afterwards, 
in  Februar}',  1891,  was  submitted  on  the  briefs  to  all  the  judges. 

G.  D.  Robinson,  for  the  plaintiff. 

G.  M.  Stearns  (IF.  B.  Stone  with  him),  for  the  defendant. 

Knoavltox,  J.  It  is  well  established  law,  that,  where  one  con- 
tracts to  furnish  labor  and  materials,  and  construct  a  chattel  or 
build  a  house  on  land  of  another,  he  will  not  ordinarily  be  excused 
from  performance  of  his  contract  by  the  destruction  of  the  chattel 
or  building,  without  his  fault,  before  the  time  tixed  for  the  delivery 
of  it.  Adams  v.  Xichols,  19  Pick.  275;  ^Yells  v.  Calnan,  107  Mass. 
514;  Dermott  v.  Jones,  2  Wall.  1;  School  Trustees  of  Trenton  r. 
Bennett,  3  Butcher,  513;  Tompkins  v.  Dudley,  25  X.  Y.  272.  It  is 
equally  well  settled,  that  when  work  is  to  be  done  under  a  contract 
on  a  chattel  or  building  which  is  not  wholly  the  property  of  the  con- 
tractor, or  for  which  he  is  not  solely  accountable,  as  where  repairs 
are  to  be  made  on  the  property  of  another,  the  agreement  on  both 
sides  is  upon  the  implied  condition  that  the  chattel  or  building  shall 
continue  in  existence,  and  the  destruction  of  it  without  the  fault  of 
either  of  the  parties  will  excuse  performance  of  the  contract,  and 
leave  no  right  of  recoverv  of  damages  in  favor  of  either  against  the 
other.  Taylor  v.  Caldwell,  3  B.  &  S.  826 ;  Lord  v.  Wheeler,  1  Gray, 
282;  Gilbert  &  Barker  :\ranuf.  Co.  v.  Butler,  146  Mass.  82;  Eliot 
Xational  Bank  v.  Beal,  141  Mass.  566,  and  cases  there  cited;  Dexter 
V.  Xorton.  47  X.  Y.  62 ;  Walker  v.  Tucker,  70  111.  527.  In  such  cases, 
from  the  very  nature  of  the  agreement  as  applied  to  the  subject- 
matter,  it  is  manifest  that,  while  nothing  is  expressly  said  about  it, 
the  parties  contemplated  tlio  continued  existence  of  that  to  which  the 
contract  relates.  The  implied  condition  is  a  part  of  the  contract,  as 
if  it  were  written  into  it,  and  by  its  terms  the  contract  is  not  to  be 
performed  if  the  subject-matter  of  it  is  destroyed,  without  the  fault 
of  either  of  the  parties,  before  the  time  for  complete  performance 
has  arrived. 

The  fundamental  question  in  the  present  case  is.  What  is  the 
true  interpretation  of  the  contract?  Was  the  house  while  in  the 
process  of  erection  to  br>  in  the  control  and  at  the  sole  risk  of  the 
defendant,  or  was  the  plaintiff  to  have  a  like  interest,  as  the  builder 
of  a  part  of  it?  Was  the  defendant's  undertaking  to  go  on  and 
build  and  deliver  such  a  house  as  the  contract  called  for,  even  if  he 
should  be  obliged  again  and  again  to  begin  anew  on  account  of  the 
repeated  destruction  of  a  partly  completed  building  by  inevitable 
accident,  or  did  his  contract  relate  to  one  building  only,  so  that  it 
would  be  at  an  end  if  the  building,  when  nearly  completed,  should 
perish  without  his  fault?  It  is  to  be  noticed  that  his  agreement  was 
not  to  build  a  house,  furnishing  all  the  labor  and  materials  there- 


656  BUTTERFIELD    V.    BYRON.  [bOOK    II. 

for.  His  contract  was  of  a  very  different  kind.  The  specifications 
are  incorporated  into  it,  and  it  apj)ear.>s  that  it  was  an  agreement  to 
contribute  certain  hibor  and  materials  towards  the  erection  of  a  house 
on  land  of  the  plaintiff,  towards  the  erection  of  which  the  plaintiff 
himself  was  to  contribute  other  labor  and  materials,  which  contribu- 
tions would  together  make  a  completed  house.  The  grading,  ex- 
cavating, stone-work,  brick-work,  painting,  and  ])luml)ing  were  to  be 
done  by  the  plaintiff. 

Immediately  before  the  fire,  when  the  house  was  nearly  completed, 
the  defendant's  contract,  so  far  as  it  remained  unperformed,  was  to 
finish  a  house  on  the  plaintiff's  land,  which  had  been  constructed  from 
materials  and  by  labor  furnished  in  part  by  the  plaintiff  and  in  part 
by  himself.  He  was  no  more  responsible  that  the  house  should  con- 
tinue in  existence  than  the  plaintiff  was.  Looking  at  the  situation 
of  the  parties  at  that  time,  it  was  like  a  contract  to  make  repairs  on 
the  house  of  another.  His  undertaking  and  duty  to  go  on  and  finish 
the  work  was  upon  an  implied  condition  that  the  house,  the  product 
of  their  joint  contributions,  should  remain  in  existence.  The  destruc- 
tion of  it  by  fire  discharged  him  from  his  contract.  The  fact  that 
the  house  was  not  in  existence  when  the  contract  was  made  is 
immaterial.    Howell  v.  Coupland,  1  Q.  B.  D.  258. 

It  seems  very  clear  that,  after  the  building  was  burned,  and  just 
before  the  day  fixed  for  the  comj)letion  of  the  contract,  the  defendant 
could  not  have  comjielled  the  ])laintiff  to  do  the  grading,  excavating, 
stone-work,  brick-work,  jiainting,  and  plumbing  for  another  house  of 
the  same  kind.  The  j)laintiff  might  have  answered,  "T  do  not  desire  to 
build  another  house  which  cannot  be  comjileted  until  long  after  the 
date  at  which  I  wished  to  use  my  house.  My  contract  related  to  one 
house.  Since  that  has  been  destroyed  without  my  fault,  T  am  under  no 
further  obligation."  If  the  plaintiff  could  successfully  have  made 
this  answer  to  a  demand  by  the  defendant  that  he  should  do  his  part 
towards  the  erection  of  a  second  building,  then  certainly  the  defendant 
can  prevail  on  a  similar  answer  in  the  present  suit.  In  oth(>r  words, 
looking  at  the  contract  from  the  plaintiff's  position,  it  s(>ems  manifest 
that  he  did  not  agree  to  furnish  the  work  and  materials  required  of 
him  by  the  specifications  for  more  than  one  house,  and  if  that  was 
destroyed  by  inevitable  accident,  just  before  its  completion,  he  was 
not  bound  to  build  another,  or  to  do  anything  further  under  his 
contract.*  If  the  plaintiff  was  not  obliged  to  make  his  contribution 
of  work  and  materials  towards  the  building  of  a  second  house,  neither 
was  the  defendant.  The  agreement  of  each  to  complete  the  perform- 
ance of  the  contract  after  a  building,  the  prod\iet  of  their  joint  con- 
tributions, had  been  partly  erected,  was  on  an  inij)lied  condition  that 

'lint  MOf.  Clinpmiin  r.  BoUz  Co.  (1000)  48  W.  Va.  1.  See,  also,  Wois  v. 
Devlin  (1887)  07  Tex.  507.— Ed. 


CHAP.    II.]  BUTTERFIELD   V.    BYRON,  657 

the  building-  .should  continue  in  existence.  Neither  can  recover  any- 
thing of  the  other  under  the  contract,  for  neither  has  performed  the 
contract  so  that  its  stipulations  can  be  availed  of.  The  case  of  Cook  v. 
McCabc,  53  Wis.  250,  was  very  similar  in  its  facts  to  the  one  at  'bar, 
and  identical  with  it  in  principle.  There  the  court,  in  an  elaborate 
opinion,  after  a  full  consideration  of  the  authorities,  held  that 
the  contractor  could  recover  of  the  owner  a  pro  rata  share  of 
the  contract  price  for  the  work  performed  and  the  materials  fur- 
nished before  the  fire.  Clark  v.  Franklin,  7  Leigh,  1,  is  of  similar 
purport. 

What  are  the  rights  of  the  parties  in  regard  to  what  has  been  done 
in  part  performance  of  a  contract  in  wdiich  there  is  an  implied  con- 
dition that  the  subject  to  which  the  contract  relates  shall  continue 
in  existence,  and  where  the  contemplated  work  cannot  be  completed 
by  reason  of  the  destruction  of  the  property  without  fault  of  either 
of  the  parties,  is  in  dispute  upon  the  authorities.  The  decisions  in 
England  differ  from  those  of  Massachusetts,  and  of  most  of  the 
other  States  of  this  country.  There  the  general  rule,  stated  broadly, 
seems  to  be  that  the  loss  must  remain  where  it  first  falls,  and  that 
neither  of  the  parties  can  recover  of  the  other  for  anything  done 
under  the  contract.  In  England,  on  authority,  and  upon  original 
grounds  not  very  satisfactory  to  the  judges  of  recent  times,  it  is  held 
that  freight  advanced  for  the  transportation  of  goods  subsequently 
lost  by  the  perils  of  the  sea  cannot  be  recovered  back.  Allison  v. 
Bristol  Ins.  Co.,  1  App.  Cas.  209,  226 ;  Byrne  v.  Schiller,  L.  R.  6  Ex. 
319.  In  the  United  States  and  in  Continental  Europe  the  rule  is 
different.  Griggs  v.  Austin,  3  Pick.  20,  22;  Brown  v.  Harris,  2  Gray, 
359.  In  England  it  is  held  that  one  who  has  partly  performed  a 
contract  on  property  of  another  which  is  destroyed  without  the  fault 
of  either  party,  can  recover  nothing ;  and  on  the  other  hand,  that  one 
who  has  advanced  payments  on  account  of  labor  and  materials  fur- 
nished under  such  circumstances  cannot  recover  back  the  money. 
Appleby  v.  Myers,  L.  R.  2  C.  P.  651 ;  Anglo-Egyptian  Navigation  Co. 
V.  Rennie,  L.  R.  10  C.  P.  271.^  One  who  has  advanced  money  for 
the  instruction  of  his  son  in  a  trade  cannot  recover  it  back  if  he  who 
received  it  dies  without  giving  the  instruction.  Whincup  v.  Hughes, 
L.  R.  6  C  P.  78.  But  whem  one  dies  and  leaves  unperformed  a 
contract  which  is  entire,  his  administrator  may  recover  anv  instal- 
ments which  were  due  on  it  before  his  death.  Stubbs  v.  Holywell 
Railway,  L.  R.  2  Ex.  311. 

In  this  country,  where  one  is  to  make  repairs  on  a  house  of  another 

^See  also,  Brumby  r.  Smith  (1841)  3  Ala.  12.3:  Clark  r.  Collier  (1893)  100 
Cal.  256;  Siegel  v.  Eaton  &  Prince  Co.  (1897)  165  111.  550;  Huvett  Mfg.  Co. 
V.  Chicago  Edison  Co.  (1897)  107  111.  '233:  Fairbanks  v.  Richardson  Drug  Co. 
(1890)  42  Mo.  App.  262;  Pike  Electric  Co.  r.  Richardson  Drug  Co.  (1890)  42 
Mo.  App.  272;  Murphy  v.  Forget  (1901)  1  Rap.  Jud.  Quebec,  19  C.  S.  135.— Ed. 


658  BUTTERFIELD  V.    BYRON.  [BOOK  II. 

under  a  special  contract,  or  is  to  furnish  a  part  of  the  work  and 
materials  used  in  the  erection  of  a  house,  and  liis  contract  becomes 
impossible  of  performance  on  account  of  the  destruction  of  the  house, 
the  rule  is  uniform,  so  far  as  the  authorities  have  come  to  our  atten- 
tion, that  he  may  recover  for  what  he  has  done  or  furnished.  In 
Clear}-  r.  Sohier,  120  Mass.  210,  the  plaintiff  made  a  contract  to 
lath  and  plaster  a  certain  buildinji  for  forty  cents  per  square  yard. 
The  building  was  destroyed  by  a  fire  which  was  an  unavoidable 
casualty.  The  plaintiff  had  lathed  the  building  and  put  on  the  first 
coat  of  plaster,  and  would  have  put  on  the  second  coat,  according  to 
his  contract,  if  the  building  had  not  been  burned.  He  sued  on  an 
implied  assumpsit  for  work  done  and  materials  found.  It  was  agreed 
that,  if  he  was  entitled  to  recover  anything,  the  judgment  should  be 
for  the  price  charged.  It  was  held  that  he  could  recover.  See  also 
Lord  r.  Wheeler,  1  Gray,  282;  Wells  v.  Calnan,  107  Mass.  514,  517. 
In  Cook  I".  ^IcCabe,  uhi  supra,  the  plaintiff  recovered  pro  rata  under 
his  contract;  that  is,  as  we  understand,  he  recovered  on  an  implied 
assumpsit  at  the  contract  rate.  In  Hollis  v.  Chapman,  Sfi  Texas,  1, 
and  in  Clark  v.  Franklin.  7  Leigh,  1,  the  recovery  was  a  proportional 
part  of  the  contract  price.  To  the  same  effect  arc  Scliwartz  v. 
Saunders,  4G  111.  18;  Kawson  v.  Clark,  70  111.  65G ;  and  Clark  v. 
Busse,  82  111.  515.  The  same  principle  is  applied  to  different  facts 
in  Jones  v.  Judd.  4  Comst.  411,  and  in  Hargrave  v.  Conroy,  4  C.  E. 
Green,  281.  If  the  owner  in  such  a  case  has  paid  in  advance,  he 
may  recover  back  his  money,  or  so  much  of  it  as  was  an  overpayment. 
The  principle  seems  to  be,  that  when,  under  an  implied  condition 
of  the  contract,  the  parties  are  to  be  excused  from  performance  if 
a  certain  event  happens,  and  by  reason  of  the  haj)])eiiing  of  the  event 
it  becomes  impossible  to  do  tliat  which  was  contenij)lated  by  tiu'  eon- 
tract,  there  is  an  implied  assumpsit  fur  what  has  properly  been  done 
by  either  of  them,  the  law  dealing  with  it  as  done  at  the  request  of 
the  other,  and  creating  a  liability  to  pay  for  its  value,  to  be  determined 
by  the  price  stipulated  in  the  contract,  or  in  some  other  way  if  the 
contract  price  cannot  be  made  applicable.^  Where  there  is  a  i)ilateral 
contract  for  an  entire  consideration  moving  each  party,  and  the  con- 
tract eannot  Ik>  |)erfornied,  it  may  be  held  that  the  eonsideration  on 
each  side  is  the  j)erfi)riii;mce  of  the  contract  by  the  other,  and   that 

'.Vcc-ord:  .\npiH  v.  Scully  (  1  •.•(«»)  \~(\  .Musm.  :]r>7 ;  llaynes  r.  Sccoiul  ]{upli»t 
Churih  (lH8ft)  88  Mo.  285  (compare  KairlmnkH  v.  RicnnrdMon  DniR  Co.  (1890) 
4-2  .Mo.  App.  202;  Pike  Klcitric  Co.  r.  UichanlHon  I)ruK  Co.  (IHUO)  42  Mo.  App. 
272);  N'ihlo  r.  ItinHHo  (1804)  1  Koyrs.  470;  Wlidiin  r.  .\nHonin  Clock  Co. 
(18H4)  1(7  N.  V.  2!i:J;  Dolan  r.  Ho^erH  (1«!»(J)  141t  N.  V.  4H<t.  4!»4 ;  HaycH  V. 
Oro«H  (1H5H5)  1>  App.  Oiv.  (\.  V.)  12  (an  pxcdlpnt  cane  alliniu'd  upon  the 
opinion  nt  Lamk.n.  .F.,  I.fiow,  ir,2  N.  V.  010);  Wcis  v.  Devlin  (1HS7)  07 
Tex.  507. 

Sec  al«o,  IJontley  r.  State   (1880)    73  \Vi^.  410— Kd. 


CHAP.  II.]  BUTTERFIELD  V.    BYRON.  Go9 

a  failure  completely  to  perform  it  is  a  failure  of  the  entire  considera- 
tion, leaving  each  party,  if  there  has  been  no  breach  or  fault  on  either 
side,  to  his  implied  assumpsit  for  what  he  has  done. 

The  only  question  that  remains  in  the  present  case  is  one  of 
pleading.  The  defendant  is  entitled  to  be  compensated  at  the  contract 
price  for  all  he  did  before  the  fire.  The  plaintiff  is  to  be  allowed  for  all 
his  payments.  If  the  payments  are  to  be  treated  merely  as  advance- 
ments on  account  of  a  single  entire  consideration,  namely,  the  com- 
pletion of  the  whole  work,  the  work  not  having  been  completed,  they 
may  be  su(nl  for  in  this  action,  and  the  defendant's  only  remedy 
available  in  this  suit  is  by  a  declaration  in  set-off.  If,  on  the  other 
hand,  each  instalment  due  was  a  separate  consideration  for  the  pay- 
ment made  at  the  time,  then  as  to  those  instalments  and  the  pay- 
ments of  them  the  contract  is  completely  executed,  and  the  plain- 
tiff can  recover  nothing,  and  the  implied  assumpsit  in  favor  of  the 
defendant  can  be  only  for  the  part  which  remains  unpaid. 

We  are  of  opinion  that  the  consideration  which  the  defendant  was 
to  receive  was  an  entire  sum  for  the  performance  of  the  contract,  and 
that  the  payments  made  were  merely  advances  on  account  of  it,  and 
that,  on  his  failure  to  perform  the  contract,  there  was  a  failure  of 
consideration  which  gave  the  plaintiff  a  right  to  sue  for  money  had 
and  received,  and  that  the  like  failure  of  consideration  on  the  other 
side  gave  the  defendant  a  right  to  sue  on  an  implied  assumpsit  for 
work  done  and  materials  found. 

The  $38  due  from  the  defendant  to  the  plaintiff  cannot  be  recov- 
ered in  this  action.  The  report  and  the  pleadings  show  that  the 
suit  was  brought  under  an  assignment  for  the  benefit  of  the  insurers, 
to  recover  damages  for  a  breach  of  the  contract  for  the  erection  of 
the  building,  and  not  to  recover  the  value  of  the  shingles  or  weights 
carried  away  from  the  ruins. 

According  to  the  terms  of  the  report,  the  ruling  being  wrong,  such 
order  may  be  made  as  this  court  shall  direct.  A  majority  of  the  court 
are  of  opinion  that  the  verdict  should  be  set  aside,  and  the  defend- 
ant be  given  leave  to  file  a  decla^tion  in  set-off,  if  he  is  so  advised, 
on  such  terms  as  the  Superior  Court  deems  reasonable. 

Verdict  set  aside. 


660  Mussox  r.  fales.  [book  ii. 

(&)  The  Contract  is  Illegal. 
(1)  The  Facts  upon  uhich  the  lUcijality  Depends  arc  Unknown  to  one  Party, 

MUSSOX  v.  FALES. 

Supreme  Judicial  Court  of  Massachusetts,  1820. 

[IG  Massachusetts.  332.] 

Assumpsit  to  recover  the  amount  of  sundry  disbursements  and  ex- 
penses on  the  brig  Julian,  of  which  the  defendants  were  owners.  Trial 
on  the  general  issue  before  the  Cliiof  Justice. 

The  plaintiffs  were  merchants  in  the  island  of  Bermudas,  within 
the  dominions,  and  subjects  of  the  king,  of  Great  Britain.  The  de- 
fendants were  citizens  of  the  United  States.  The  brig  Julian  was  pro- 
vided with  papers,  to  give  to  her  the  appearance  of  Spanish  property, 
and  was  under  the  care  of  Eustace  Maloni/.  who  profes.>^ed  himself  a 
Spanish  subject.  The  vessel  having  left  the  United  States  in  June, 
1813,  in  her  return  from  Porto  Rico  to  the  United  States  arrived  at 
Berniudas  on  the  25th  of  December  following;  at  which  time  war  ex- 
isted between  these  states  and  Great  Britain.  The  brig  needed  repairs, 
having  been  much  injured  by  winds  and  weather. 

Capt.  Malony  ap])lied  to  the  plaintiffs  to  assist  him;  and,  without 
disclosing  the  real  character  of  the  vessel,  or  that  any  persons  were 
concerned  with  him  in  the  voyage,  procured  the  plaintiffs  to  pay  and 
advance  to  him  the  several  sums,  charged  in  the  account  of  disburse- 
ments and  repairs.  After  she  was  refitted  and  ready  for  sea,  she  was 
seized  by  the  marshal  of  the  vic(^-admiralty  court,  libelled  and  con- 
demned as  enemy's  property.  The  plaintiffs,  at  the  re(|uest  of  .Va- 
lony,  aided  him  in  defending  against  the  libel,  and  paid  the  several 
l)ills  charged  in  their  account,  touching  the  proceedings  in  the  vice- 
admiralty  court. 

.\n  appeal  was  clainie(l  by  the  pkiintifTs  at  the  recpiest  of  }falonj/, 
and  they  gave  Ijonds  to  j)rosecute  the  apjieal.  They  caused  the  aj)peal 
to  be  prosecuted  in  England;  where  the  decree  of  the  court  of  vice-ad- 
miralty was  afTirmed  ;  and  they  had  paid,  or  were  liable  to  pay,  the 
sums  chargefl  liy  t'  em,  as  expenses  of  prosecuting  the  appeal. 

It  appeared  in  evidence,  that  the  defendants  knew  of  the  pendency 
of  the  appeal,  and  did  not  disapprove  of  the  same.  No  express  prom- 
ise was  shewn.  The  verdict  was  for  the  plaintiffs:  and  if,  in  the 
opinion  of  the  court,  they  were  entitled  to  recover,  auditors  were  to 
be  appointed  by  the  court,  and  the  verdict  was  to  be  conformed  to 
their  report  as  to  the  amount  of  damages;  and  judgment  accordingly: 
otherwise  the  plaintifTs  were  to  become  nonsuit. 

Thatcher  and  Webster,  for  the  defendanta,  contended  that  all  vol- 


CHAP.    II.]  MUS.SOX    V.    FALES.  661 

untary  trading  or  even  intercourse  between  the  citizens  of  two  nations 
at  war  was  wholly  unlawful,  and  no  contract  arising  thereon  could 
ever  be  enforced.  Indeed  parties  so  situated  are  wholly  incapable  of 
contracting.  No  civil  relation  exists  between  them.  Certain  species 
of  contracts,  which  arise  from  the  state  of  war  itself,  are  alone  ex- 
cepted ;  as  capitulations,  cartels,  exchange  of  prisoners,  ransoms,  &c. 
Holman  v.  Johnson,  Cowp.  343;  3  B  &  P.  35;  8  Cranch.  155; 
7  Taunt.  489;  15  Johns.  57;  3  Merivale,  469;  Edw.  Adm.  Kep.  327; 
Doug'.  650;  A^attel  B.  2,  c.  5;  7  St.  Trials,  493;  13  Ves.  jun.  71. 

W.  Sullivan  and  Mason  for  the  plaintiffs. 

Parker,  C.  J.,  delivered  the  opinion  of  the  court.  This  case  is  dif- 
ferent, in  some  of  its  aspects,  from  all  which  have  been  cited,  and 
from  any  which  we  have  been  able  to  find. 

It  seems  to  be  the  settled  law,  that  all  trading  between  the  sub- 
jects of  nations  at  war  is  unlawful ;  and  that  all  contracts  growing 
out  of  such  trading,  or  out  of  any  voluntary  intercourse  with  a  publick 
enemy,  are  void.  Such  trading  and  intercourse  are  considered  crim- 
inal in  both  parties;  and  no  action  can  be  maintained,  the  basis  of 
which  is  an  unlawful  act  of  the  party  bringing  the  action. 

But  the  case  before  us  is  of  a  different  complexion.  The  plaintiffs 
must  be  taken  to  have  been  ignorant  of  the  national  character  of  the 
vessel  they  were  supplying,  and  to  have  dealt  upon  the  faith  that  they 
were  trading  with  a  neutral,  in  the  due  and  regular  course  of  busi- 
ness ;  and  this  even  after  the  vessel  was  seized.  For  supposing  them 
to  believe  she  was  hona  fide  a  Spanish  vessel,  it  was  not  unlawfid,  but 
on  the  contrary  laudable  for  them  to  endeavour  to  procure  her  re- 
lease. It  is  the  common  duty  of  factors  and  agents  in  a  foreign 
country,  to  labour  in  the  defence  of  property  committed  to  their  care, 
when  charged  with  a  violation  of  the  laws  of  their  country:  and  it 
is  only  when  they  are  assisting  to  evade  those  laws,  knowing  of  an  in- 
tent to  evade  them  in  their  principals,  that  they  become  amenable  as 
unfaithful  subjects.  In  the  cases  which  commonly  occur,  of  trading 
or  making  contracts  with  the  enemy,  the  parties  are  generallv  in  pari 
delicto;  and  neither  can  maintain  an  action  against  the  other. 

When  a  case  arises,  which  shews  the  offence  to  be  all  on  one  side, 
it  would  seem  not  only  contrary  to  justice,  but  to  the  very  doctrine 
upon  which  the  general  policy  is  founded,  to  allow  the  criminal  debtor 
to  go  free,  to  the  loss  of  the  innocent  and  ignorant  creditor:  for  this 
would  be  to  punish  the  innocent  for  the  benefit  of  the  guiltv.  If  in 
time  of  war,  an  enemy  should  come  into  this  country  in  disguise,  and, 
claiming  to  be  an  American  citizen,  should  obtain  property  upon 
credit;  shall  he,  when  sued,  assent  his  own  character,  and  successfully 
resist  the  suit  upon  the  ground  that  he  had  traded  with  the  enemy? — 
If  this  be  the  law  of  nations,  or  of  war,  it  would  seem  that  all 
moral  principle  was  to  give  way  before  the  stern  and  relentless  genius 
of  war. 


CG2  MussoN  r.  fales.  [book  ii. 

But  we  apprehend  it  is  not  so.  There  must  be  an  analogy  between 
the  princij)les,  which  regulate  contracts  arising  in  a  state  of  war,  and 
those  which  are  made  in  a  time  of  peace.  When  a  man  would  avoid 
his  contract,  as  contrary  to  the  provisions  of  municipal  law,  it  must 
appear  that  the  party  prosecuting  was  in  fault,  as  well  as  himself. 
Thus  in  the  case  of  usury,  and  of  gaming,  both  parties  are  equally  in 
fault;  and  either  may  successfully  resist  the  other,  in  a  court  of  jus- 
tice. But  no  instance  can  be  produced  from  the  books,  where  a  man 
has  been  permitted  to  avow  his  own  breach  of  law,  in  order  to  avoid 
his  contract;  where  there  has  been  a  valualile  consideration  paid  by 
the  other  party,  who  is  entirely  free  from  any  criminal  intent:  unless 
such  contract  be  rendered  utterly  void  by  statute.  Indeed  it  is  diffi- 
cult to  conceive  of  a  case,  arising  under  the  municipal  law,  in  which 
the  unlawfulness,  if  any  exist,  is  not  mutual. 

But  the  case  before  us  has  such  an  aspect,  one  party  alone  being 
guilty.  The  defendants'  vessel  went  into  an  enemy's  port  in  the  guise 
of  a  friend;  whether  forced  in  or  not  makes  no  difference.  The  de- 
fendants' agent,  pretending  to  be  the  sul)ject  of  a  neutral  power,  so- 
licited assistance  from  the  plaintiffs.  How  could  these  latter  have 
committed  an  offence,  in  affording  it?  If  prosecuted  by  their  own 
government,  they  could  have  defended  themselves,  by  shewing  their 
ignorance  of  the  fact.  What  would  constitute  a  defence  in  such  prose- 
cution, ought  to  be  sufficient  to  repel  the  di'fendants'  answer  to  their 
demand. 

It  is  said  however  tliat,  being  enemies,  thoy  are  incapable  of  con- 
tracting; that  they  never  stood  in  the  relation  of  debtor  and  creditor. 
But  this  in  petitio  prinripii  Goods  sold,  and  services  performed,  are 
the  foundation  of  contracts.  A  contract  nuiy  be  avoided,  if  unlaw- 
ful. But  it  i.s  not  unlawful  if  the  party  claiming  be  in  no  fault:  and 
he  cannot  be  in  fault,  if  he  be  ignorant  of  the  facts  which  constitute 
the  unhiwfulness. 

From  this  reasoning  it  follows  that  the  ])laintiirs  are  entitled  to 
judgment  on  the  verdict  rendered  in  their  favour:  and  auditors  must 
be  appointed,  who  are  to  report  the  sum,  for  which  judgment  is  to 
be  rendered.' 

•Accord:  Oom  r.  Bruce  (1810)  12  p:nst,  22ry;  Bnrckbnldcr  v.  Rootpm's  Ad- 
miniHtrators  (1870)  (55  IVnn.  St.  400;  Rloxsonic  r.  Williinns  (1824)  3  B.  4  C. 
2.T2;   Hentig  v.  Stmiiff.rtli    (IHKi)   f)  M.  &  S.  122.— Ku. 


CHAP.    II.]  TAPPEXDEX    V.    RANDALL.  663 


(2)   The  Facts  upon  which  the  Illegality  Depends  are  Enovm  to  Both 

Parties. 

TAPPENDEN  v.  RANDALL. 

Common  Pleas,  1801. 
[2  Bosanquet  and  Puller,  467.] 

This  cause  came  on  to  be  tried  before  Lord  Alvanley,  Ch.  J., 
at  the  second  Sittings  in  this  Term,  when  a  verdict  was  found  for  the 
Plaintiffs,  damages  £216,  costs  £10,  subject  to  the  opinion  of  the 
Court  on  the  following  case. 

The  declaration  stated,  that  the  Defendant,  before  the  bankruptcy 
of  Bray,  was  indebted  to  Bray  in  £300,  for  money  lent,  and  £300  for 
money  paid,  and  that  he  was  indebted  to  the  Plaintiffs  after  the 
bankruptcy  in  £300  as  well  for  money  before  Bray  became  a  bank- 
rupt received  to  Bray's  use,  as  for  money  after  the  bankruptcy  received 
to  the  use  of  the  assignees,  and  upon  an  account  stated  with  the 
Plaintiffs  as  assignees. 

Bray  duly  became  a  bankrupt,  and  the  commission  was  issued 
against  him,  under  which  the  Plaintiffs  were  declared  his  assignees. 
On  the  12th  of  November,  1800,  previous  to  any  act  of  bankruptcy, 
in  consideration  of  £210  then  paid  by  Bray  to  the  Defendant  the 
Defendant  entered  into  a  bond  in  the  penal  sum  of  £999  with  a 
condition  as  follows :  "Whereas  the  said  William  Randall  h'ath,  in  con- 
sideration of  two  hundred  and  ten  pounds  to  him  paid  by  the  said 
John  Bray,  at  the  time  of  the  sealing  and  delivery  of  the  above  written 
bond  or  obligation,  contracted  and  agreed  to  pay  unto  the  said  John 
Bray  or  his  assigns,  on  the  first  day  of  May  in  every  year,  one  annuity 
or  clear  yearly  sum  of  one  hundred  and  five  pounds  until  he  the  said 
Williafn  Eandall.  his  heirs,  executors,  or  administrators  can  prove 
by  evidence,  or  otherwise,  to  abide  by  the  report  of  three  eminent 
hop  merchants  who  shall  make  it  appear  to  the  satisfaction  of 
the  said  John  Bray,  his  executors,  administrators,  and  assigns, 
that  the  revenue  received  by  Government  l)y  reason  of  the  duties 
now  assessed  by  parliament  upon  hops  grown  in  Great  Britain, 
shall  in  the  present  or  any  one  year  hereafter,  amount  to  a  full  and 
clear  revenue  or  sum  of  (wo  hundred  thousand  pounds,  such  duties 
to  be  taken  according  to  those  at  present  imposed  by  parliament,  and 
not  to  be  affected  by  any  subsequent  alteration  whatever;  and  for 
securing  the  due  payment  of-  the  said  annuity  of  one  hundred  and  five 
pounds  until  such  event,  the  said  William  Randall  hath  entered  into 
the  above  written  bond  or  obligation :  Xow,  therefore,  the  condition 
of  the  above  written  bond  or  obligation  is  such,  that  if  the  said 


664  TAPPENDEX    r.    RANDALL.  [BOOK   II. 

WiUiam  Randall,  his  heirs,  executors,  administrators,  or  assigns,  shall 
and  do  from  the  date  of  the  above  bond  well  and  truly  pay,  or  cause 
to  be  paid  unto  the  said  John  Bray,  or  his  assigns,  one  annuity  or 
clear  yearly  sura  of  one  hundred  and  five  pounds  of  lawful  money 
of  Great  Britain,  on  the  first  day  of  Mai/  in  each  and  every  year, 
without  any  deduction  or  abatement  whatsoever,  until  the  said 
WiUiam  Randall,  his  heirs,  executors,  or  administrators  shall  prove 
by  evidence,  or  otherwise  abide  by  the  report  of  three  eminent  hop 
merchants,  who  shall  make  it  appear  to  the  satisfaction  of  the  said 
John  Bray  or  his  assigns,  that  the  revenue  received  by  Government 
by  reason  of  the  duties  now  assessed  by  Parliament  upon  hops,  shall, 
in  the  present  or  any  one  year  hereafter,  amount  to  a  full  and  clear 
revenue  or  sum  of  two  hundred  thousand  pounds,  such  duties  to  be. 
taken  according  to  those  at  the  present  time  imposed  by  Parliament, 
and  not  to  be  affected  by  any  subsequent  alteration  therein,  and  shall 
and  do  make  the  first  payment  of  the  said  annuity  of  one  hundred 
and  five  pounds  on  the  first  day  of  May  in  the  year  of  our  Lord  1802, 
then  and  in  such  case  or  cases  the  above  written  bond  or  obligation 
shall  be  void  and  of  none  effect,  otherwise  it  shall  be  and  remain  in 
full  force  and  virtue. 

"William  Randall  (Seal). 
"Sealed    and   delivered    (l)cing   first 

legally     stamped,     and     several 

obliterations   and   interlineations 

being  made)   in  presence  of 

"John  Broad. 
"Wm.  Mann. 
"Received    at    the    time    of    the    sealing   and 
delivery  of  the  within  written  bond  or  obliga- 
tion of  and  from  the  within  named  John  Bray 
the  sum  of  two  hundred  and  ten  pounds  (being  1-  £210. 
the  consideration  paid  for  the  annuity  within 
secured)    by   me.      Signed   in   the    presence   of 
John  Broad,  Wm.  Mann. 

"Wm.  Randall" 

Before  the  bringing  of  this  action  the  Plaintiffs  applied  to  the 
Defendant,  stating  that  they  considered  the  Ijond  to  be  illegal,  and 
demanding  the  return  of  the  £210  and  interest,  which  was  refused. 

If  the  Court  should  be  of  opinion,  that  the  Plaintiffs  were  entitled 
to  recover  back  the  said  sum  of  £210  with  interest  thereon,  then  the 
verdict  to  stand.  If  the  Court  should  be  of  opinion,  that  the  I^laintiffs 
were  entitled  to  recover  back  the  .said  snm  of  £210  but  were  not 
entitled  to  interest  thereon,  then  the  verdict  to  be  entered  for  £210 
damages  and  lOs.  eosts.  If  the  (^ourt  should  be  of  opinion,  that  the 
Plaintiffs  were  entitled  to  recover  nothing,  a  nonsuit  to  be  entered. 


CHAP.    II.]  TAPPEXDKX    I'.    ItANDALL.  665 

Heath,  J.  I  am  of  the  same  opinion.  It  seems  to  me,  that  the 
distinction  adopted  by  Mr.  Justice  Buller  between  contracts  execu- 
tory and  executed,  if  taken  with  those  modifications  which  he  would 
necessarily  have  applied  to  it,  is  a  sound  distinction.^  Undoubtedly, 
there  may  be  cases  where  the  contract  may  be  of  a  nature  too  grossly 
immoral  for  the  Court  to  enter  into  any  discussion  of  it ;  as  where 
one  man  has  paid  money  by  way  of  hire  to  another  to  murder  a 
third  person.  But  wliere  notliing  of  that  kind  occurs,  I  think  there 
ought  to  be  a  locus  pcenitentup,  and  that  a  party  should  not  be  com- 
pelled against  his  will  to  adhere  to  the  contract. 

RooKE,  J.  This  is  an  action  brought  by  assignees  to  recover  back 
money  paid  by  way  of  consideration  for  a  bond  which  clearly  could 
not  be  put  in  force,  and  I  think  this  action  may  well  be  supported. 
There  is  nothing  criminal  in  the  contract  which  was  entered  into 
between  these  parties ;  nor  has  that  contract  been  executed ;  nor 
indeed,  is  this  a  case  where  money  which  has  been  paid  over  by  a 
stakeholder  is  sought  to  be  recovered.  I  therefore  see  no  reason  to 
prevent  the  present  Plaintiffs  from  recovering :  and  I  wish  it  to  be 
understood,  that  I  fully  accede  to  the  doctrine  laid  down  by  Mr. 
Justice  Buller  respecting  contracts  executory  and  executed.  If,  in 
this  case,  any  money  had  been  paid  upon  the  bond.  I  should  have  felt 
great  diificulty  respecting  the  right  of  the  Plaintiffs  to  recover.- 

Postea  to  the  Plaintiffs.' 

^"There  is  a  sound  distinction  between  contracts  executed  and  executory, 
and  if  an  action  is  brought  to  rescind  a  contract,  you  must  do  it  while  the  con- 
tract continues  executory,  and  then  it  can  only  be  done  in  tlie  terms  of  re- 
storing the  other  party  to  his  original  situation."  Per  Biller,  J.,  in  Lo\\Ty  v. 
Bourdieu    (1780)    Douglass,  468,  p.  471.— Ed. 

"Opinions  of  Alvanley,  C.  J.,  and  Chambre,  J.,  omitted. 

'Accord:  Aubert  v.  Walsh  (1810)  3  Taunton,  277;  Bank  v.  Wallace  (1881) 
61  N.  H.  24  {semble)  ;  McCutcheon  v.  'Slerz  Capsule  Co.  (1896)  71  Fed.  787; 
Spring  Co.  v.  Knowlton  (1880)  10.3  U.  S.  40:  Wright  v.  Stewart  (1904)  130 
Fed.  905. 

"The  law  encourages  a  repudiation  of  an  illegal  contract  and  allows  a 
locus  penitenti<p  to  the  guilty  party  as  long  as  it  remains  an  executory  con- 
tract and  the  illegal  purpose  is  not  put  into  execution.  Bernard  r.  Taylor 
(1893)  23  Ore.  416.  It  has  been  held  otherwise  after  the  dcUctuni  has 
been  consummated.  Abbe  v.  Marr  (18.59)  14  Cal.  210;  Anonymous  (1889)  10 
Ohio  Dec.  649.  There  is  a  decided  tendency  among  courts  and  text-wTiters  to 
distinguish  between  degrees  of  guilt  in  such  cases  on  the  theory  that  the  delib- 
erate swindler  should  not  be  able  to  protect  himself  by  the  legal  maxim. 
'In  pari  delicto  potior  est  conditio  possidentis.'  Pomeroy.  Equity  11,  sec.  942; 
Smith  /■.  Blachley  (1898)  188  Pa.  St.  .').')0:  Timmormau  r.  Bidwoll.  62  Mich. 
205."     4  Col.  Law  Rev.  604. 

So  under  "the  statute  13  Eliz.  c.  5  against  fraudulent  conveyances  .  .  . 
such  a  conveyance  is  valid  as  between  the  parties.  Proseus  v.  Mclntyre  (1849) 
5  Barb.  424,   [and]  the  courts  generally  will  not  entertain  a  suit  to  put  the 


6GG  THE    HIGIIWAYMAX'S   CASE.  [BOOK  II. 

THE  HIGHWAYMAN'S  CASE. 

Exchequer,  1725. 

[2  Evans'  Pothicr  on  Obligations,  3,  n.  1.^] 

The  bill  stated  that  the  plaintiff  was  skilled  in  dealing  in  several 
commodities,  such  as  plate,  rings,  watches,  &.c. ;  that  the  defendant 
applied  to  him  to  become  a  partner;  that  they  entered  into  partner- 
ship, and  it  was  agreed  that  they  should  equally  provide  all  sorts  of 
necessaries,  such  as  horses,  saddles,  bridles,  and  eiiually  bear  all  ex- 
penses on  the  roads,  and  at  inns,  taverns,  or  ale  houses,  or  at  markets, 
or  fairs. 

"And  your  orator,  and  the  said  Joseph  Williams  proceeded  jointly 
in  the  said  business  with  good  success  on  Hounslow-Heath,  when  they 
dealt  with  a  gentleman  for  a  gold  watch,  and  afterwards  the  said 
Joseph  Williams  told  your  orator  that  Finchley,  in  the  County  of 
Middlesex,  was  a  good  and  convenient  place  to  deal  in,  and  that 
commodities  were  very  plenty  at  Finchley  aforesaid,  and  it  would  be 
almost  all  clear  gain  to  them;  that  they  went  accordingly,  and  dealt 
with  several  gentlemen  for  divers  watches,  rings,  swords,  canes,  hats, 
cloaks,  horses,  bridles,  saddles,  and  other  things ;  that  about  a  month 
afterwards  the  said  Joseph  Williams  informed  your  orator  that  there 
was  a  gentleman  at  Blackheath  who  had  a  good  horse,  saddle,  bridle, 
watch,  sword,  cane,  and  othi'r  things  to  dispose  of,  which  he  believed 
might  be  had  for  little  or  no  money;  that  they  accordingly  went, 
and  met  with  the  said  gentleman,  and  after  some  small  discourse 
they  (le;ilt  for  the  said  horse,  &c. ;  that  your  orator  and  the  said 
Joseph  Williams  continued  their  joint  dealing  together  until  ^lichael- 
mas,  and  dealt  together  in  several  places,  viz.,  at  Bagshot  in  Surrey, 
Salisbury  in  Wiltshire,  Hampstead  in  ^Middlesex,  and  elsewhere  to  the 
amount  of  €'<^,()()()  and  upwards." 

The  rest  of  the  bill  is  in  the  ordinary  form  for  a  jiartntM-ship 
account.     3d  October,  1725,  on  the  motion  of  Sergeant  Oinllcr.  the 

grantee  in  possession,  Soullioni  lOv.  Co.  r.  DuUcy  (1S73)  48  Ga.  358;  Kirkjinl- 
rick  r.  Clnrk  (I8!t())  l.J'i  111.  .-{42.  for  tliat  wi.uld  lit-  cxcMUliu};  the  illi>-;nlity. 
Mediaris  v.  Ornnhcrry  (Tox.  1!)0.-))  84  S.  \V.  1070;  Harrison  r.  Thatcher  (  1872) 
44  Ga,  038.  However,  [eiiuity  will  {.'rant  a  roeonvoyance]  if  (1)  tlie  pantor 
nsks  it  in  the  interest  of  his  eredilors.  ('ar)l  r.  Emory  (1888)  148  Mass.  32; 
[Taylor  v.  Rowers  (1870)  12  H.  Div.  201]  ;  or  if  (2)  he  conveyed  under  duress. 
Adderson's  Adin'r's  r.  Meredith  (1885)  82  Ky.  505;  Austin  v.  Winston  (Vn. 
1800)  1  II.  &  M.  32.  3  Am.  Dec.  583;  Bump,  Fraudulent  Conveyances.  lM  cd. 
442."     5  Col.  I.nw.  Hev.  473.— Ki>. 

'This  case,  under  the  name  of  Kverett  v.  Williams,  was  originally  reported 
in  European  Magazine  for  May,  1787,  vol.  1,  300. — Ed. 


CHAP.    II.]  WEBR    V.    FULCIIIUE.  667 

bill  referred  for  scandal  and  impertinence.  29th  November,  report  of 
the  bill  as  scandalous  and  impertinent  confirmed;  and  order  to  attach 
White  and  Wreathcock,  the  solicitors.  6th  December.  The  solicitors 
brought  into  court  and  fined  £50  each ;  and  ordered  that  Jonathan 
Collins,  Esq.,  the  counsel  who  signed  the  bill,  should  pay  the  costs. 
The  plaintiff  was  executed  at  Tyburn  in  1730,  the  defendant  at  Maid- 
stone in  1735.  Wreathcock,  the  solicitor,  was  convicted  of  robbing 
Dr.  Lancaster  in  1735,  but  reprieved  and  transported.^ 


WEBB  V.  FULCHIRE. 

Supreme  Court  of  North  Carolina,  1843. 

[3  Iredell's  Law,  485.] 

This  was  an  action  of  assumpsit,  brought  by  the  plaintiff  to 
recover  the  sum  of  forty  dollars.  The  jury  found  a  verdict  for  the 
plaintiff,  subject  to  the  opinion  of  the  court  on  the  following  facts. 
The  defendant  had  three  acorn  cups  and  a  white  ball,  which  he  placed 
under  one  of  the  cups  in  the  presence  of  the  plaintiff.  The  defendant 
proposed  to  bet  the  plaintiff  twenty  dollars,  that  he  could  not  tell 
which  one  of  the  three  cups  the  ball  was  under.  The  plaintiff  bet 
him  that  he  could,  and  thereupon  staked  twenty  dollars.  The  plaintiff 
pointed  to  the  cup,  and  bet  that  the  ball  was  under  that  one.  The 
defendant  raised  the  cup  and  the  ball  was  not  there.  The  money 
staked  was  then  paid  over  to  the  defendant  as  being  won  by  him.  In 
the  same  way  the  defendant  won  twenty  dollars  more,  which'  was  in 
like  manner  paid  over  to  him.  The  court  was  of  opinion  that  the 
plaintiff  could  not  maintain  this  action,  and  set  aside  the  verdict  and 
entered  a  nonsuit.    From  this  judgment  the  plaintiff  appealed. 

RuFFiN,  C.  J.  It  is  not  denied  that  the  law  gives  no  action  to  a 
party  to  an  illegal  contract,  either  to  enforce  it  directly,  or  to  recover 

'In  Ridler  v.  Moore  (1707)  Clifford's  Southwark  Election  Cases,  371, 
Kenyon,  C.  J.,  is  reported  to  have  said:  "He  had  heard  of  a  bill  filed  in  the 
Court  of  Chancery,  to  obtain  an  account  of  the  profits  of  a  partnership 
trade  carried  on  at  Bounslow,  but  when  it  appeared  that  the  trade  was  taking 
the  purses  of  those  who  travelled  over  the  heath,  the  Court  would  not  endure 
It." 

In  a  still  earlier  case,  (before  Lord  JI.\nsfield)  Faikney  v.  Reynons 
(1767)  4  Burr.  20G9,  2071,  the  principal  case  was  cited  as  an  authority  by 
counsel. 

The  case  was  long  regarded  as  a  jest  or  hoax  of  some  equity  draftsman, 
but  a  careful  examination  of  the  original  records  by  Sir  Frederick  Pollock 
lias  established  its  jjenuineness.  As  Sir  Frederick  exclaims:  "Truth  is  stranger 
than  fiction!"     See  9  Law  Quarterly  Review.  105,  197-109.— Ed. 


668  WEBB    V.    FULCHIRE.  [BOOK   II. 

back  money  paid  on  it  after  its  execution.  Nor  is  it  doubted,  that 
money,  fairly  lost  at  play  at  a  forbidden  game  and  paid,  cannot  be 
recovered  back  in  an  action  for  money  had  and  received.  But  it  is 
perfectly  certain,  that  money,  won  by  cheating  at  any  kind  of  game, 
whether  allowed  or  forbidden,  and  paid  by  the  loser  without  a  knowl- 
edge of  the  fraud,  may  be  recovered.  A  wager  won  by  such  undue 
means  is  not  won  in  the  view  of  the  law,  and,  therefore,  the  money 
is  paid  without  consideration  and  by  mistake,  and  may  be  recovered 
back.  That,  we  think,  was  plainly  this  case.  The  bet  was,  that  the 
plaintiff  could  not  tell,  which  of  the  three  cups  covered  the  ball.  Well, 
the  case  states  that  the  defendant  put  the  ball  under  a  particular 
one  of  the  cups,  and,  then,  that  the  plaintiff  selected  that  cup,  as  the 
one  under  which  the  ball  was.  Thus  we  must  understand  the  ease, 
because  it  states  as  a  fact,  that  the  defendant  "placed  the  ball  under 
one  of  the  cyps,"  and  that  the  plaintiff  "pointed  to  the  cup,"  that  is, 
the  one  under  which  he  had  seen  the  ball  put,  as  being  that  which 
still  covered  it.  We  are  not  told  how  this  matter  was  managed,  nor 
do  we  pretend  to  know  the  secret.  But  it  is  indubitable,  that  the 
ball  was,  by  deceit,  not  put  under  the  cup,  as  the  defendant  had  made 
the  plaintiff  believe,  and  under  which  belief  he  had  drawn  him  into 
the  w'ager;  or  that,  after  it  was  so  placed,  it  was  privily  and  artfully 
removed  either  before  or  at  the  time  the  cup  was  raised.  If  the 
former  be  the  truth  of  the  case,  there  was  a  false  practice  and  gross 
deception  upon  the  very  point,  that  induced  the  laying  of  the  wager, 
namely,  that  the  ball  was  actually  put  under  the  cup.  For,  clearly, 
the  words  and  acts  of  the  defendant  amount  to  a  representation,  that 
such  was  the  fact;  and  indeed  the  case  states  it  as  the  fact.  Hence, 
and  because  we  cannot  suppose  the  vision  of  the  plaintiff  to  have  been 
so  illuded,  we  rather  presume  the  truth  to  be,  that  the  ball  was 
actually  placed  where  the  defendant  pretended  to  place  it,  that  is  to 
say,  under  the  particular  cup  which  the  plaintiff  designated  as  cover- 
ing it.  Then  the  case  states  that  the  defendant  raised  that  cup,  and 
the  ball  was  not  there:  a  physical  impossibility,  unless  it  had  been 
removed  by  some  contrivance  and  sleight  of  hand  by  the  defendant. 
Unquestionably  it  was  affected  by  some  such  means;  for  presently  we 
find  the  defendant  in  possession  of  the  ball,  ready  for  a  repetition 
of  the  bet  and  the  same  artifice.  Such  a  transaction  cannot  for  a 
moment  be  regarded  as  a  wager,  depending  on  a  future  and  uncertain 
event ;  but  it  was  only  a  pretended  wager,  to  be  determined  by  a 
contingency  in  shew  only,  but  in  fact  by  a  trick  in  jugglery  by  one  of 
the  parties,  practiced  upon  the  unknowing  and  unsuspecting  sim- 
])Iieity  and  credulity  of  the  other.  Surely,  the  artless  fool,  who  seems 
to  have  been  alike  bereft  of  his  senses  and  his  money,  is  not  to  be 
deemed  a  partaker  in  the  same  crime,  in  pari  delicto,  with  the 
juggling  knave,  wlu)  gulled  anrl  fleeeed  him.  The  whole  was  a  down- 
right and  undeniable  cheat;  and  the  plaintiff  parted  with  his  money 


CHAP.   11.]  BROWXIXG   V.   MORRIS.  669 

under  the  mistaken  belief,  that  it  had  been  fairly  won  from  him,  and, 
therefore,  may  recover  it  back.^ 

The  judgment  of  nonsuit  is  reversed,  and  judgment  for  the  plain- 
tiff according  to  the  verdict.^ 
Per  Curiam. 

Judgment  below  reversed  and 
judgment  for  the  plaintiff. 


BROWNING  V.  MOEEIS. 

King's  Bench,  1778. 

[Cowper,  790.] 

Upon  shewing  cause  why  the  verdict  found  in  this  case,  for  the 
plaintiff,  should  not  be  vacated,  and  a  non-suit  entered  in  its  stead; 
Lord  Mansfield  reported  in  substance  as  follows :  "  This  was  an  ac- 
tion for  money  had  and  received.  The  plaintiff  and  defendant  were 
both  lottery-office-keepers;  and  during  the  drawing  of  the  lottery,  en- 
tered into  an  agreement  mutually  to  insure  the  number  of  a  ticket 
with  each  other,  upon  condition,  that  he  whose  number  should  be 
drawn  on  the  day  next  following  the  agreement,  should  receive  from 
the  other  an  undrawn  ticket,  or  the  value  of  it  at  the  market  price. 
The  defendant's  number  being  drawn,  he  chose  the  price  of  an  un- 
drawn ticket  which  came  to  £14  3s.;  and  received  that  sum  from  the 
plaintiff.  The  next  day,  each  insured  another  number  upon  the  same 
terms.  And  so  the  contract  was  continued  from  day  to  day.  It  after- 
wards happened,  that  the  plaintiff's  number  was  drawn;  when  the  de- 
fendant, instead  of  complying  with  the  terms  of  the  agreement  as  the 
plaintiff  had  done,  refused  to  give  the  plaintiff  either  an  undrawn 
ticket  or  the  value  of  it.  Xeither  of  them  had  any  tickets  in  their 
possession,  the  consequence  of  which  is,  that  the  contract  was  illegal, 
and  against  the  statute.    The  question  is.  Whether  the  plaintiff  is  en- 

'So  when  the  defendant  substituted  a  false  ticket  which  he  pretended  to 
draw  from  an  illegal  lottery,  a  recovery  of  the  prize  paid  over  was  allowed. 
Catts  V.  Phelan  (U844)  2  How.  U.  S.  376;  or  when  a  gambling  concern  made 
false  statements  as  to  its  solvency.  In  re  E.  J.  Arnold  &  Co.  (1904)  133  Fed. 
189.— Ed. 

^Contra:   Babcoek  v.  Thompson   (182fi)   3  Pick.  446. 

A  recovery  has  been  allowed  when  the  defendant  was  in  a  position  to  use 
undue  influence;  as  a  father,  Osborne  v.  Williams  (1811)  18  Vesey,  379,  or  on 
attorney,  Ford  v.  Harrington  (1857)  16  N.  Y.  285;  Schoener  v.  Lissauer 
(1887)  107  N.  Y.  Ill;  or  when  the  defendant  has  exercised  duress,  as  in 
Hinsdill  v.  White  ( 1861 )  34  Vt.  558,  when  the  defendant  for  his  promise  not 
to  prosecute,  extorted  money  from  a  mother,  whose  son  he  falsely  accused  of 
theft;  but  on  the  subject  generally,  see  section  on  Duress,  ante,  154  et  seq. — Ed. 


670  BROWNING    C.    MORRIS.  [BOOK   II. 

titled,  in  disaflfir^nance  of  the  contract,  to  recover  back  the  sum  which 
he  has  paid  upon  this  illegal  transaction? 

Lord  Mansfield,  on  this  day  delivered  his  opinion  as  follows:  The 
rule  is,  in  pari  delicto,  potior  est  conditio  defendentis:  And  there  are 
several  other  maxims  of  the  same  kind.  Where  the  contract  is  exe- 
cuted, and  the  money  paid  in  pari  delicto,  this  rule,  as  Mr.  Dunning 
contended,  certainly  holds:  And  the  party  who  has  paid  it,  cannot 
recover  it.  For  instance,  in  bribery,  if  a  man  pays  a  sum  of  money  by 
way  of  a  bribe,  he  can  never  recover  it  in  an  action;  because  both 
plaintiff  and  defendant  are  eqnalh/  rrimi)ial.  But  where  contracts  or 
transactions  are  prohibited  by  positive  statutes,  for  the  sake'  of  pro- 
tecting one  set  of  men  from  another  set  of  men ;  the  one,  from  their 
situation  and  condition,  being  liable  to  be  oppressed  or  imposed  upon 
by  the  other;  ///r/r^  the  parties  are  not  in  pari  delicto:  and  in  further- 
ance of  these  statutes,  the  person  injured,  after  the  transaction  is  fin- 
ished and  completed,  may  bring  his  action  and  defeat  the  contract. 
For  instance,  by  -the  statute  of  usury,  taking  more  than  5  per  cent, 
is  declared  illegal,  and  the  contract  void ;  but  these  statutes  were  made, 
to  protect  needy  and  necessitous  persons  from  the  oppression  of 
usurers  and  monied  men,  who  are  eager  to  take  advantage  of  the  dis- 
tress of  others;  whilst  they,  on  the  other  hand,  from  the  pressure  of 
their  distress,  are  ready  to  come  into  any  terms,  and,  with  their  eyes 
open,  not  only  break  the  law,  but  complete  their  ruin.  Therefore  the 
party  injured  may  bring  an  action  for  the  excess  of  interest.  Another 
instance  that  occurs  to  me  is  the  clause  in  the  stat.  5  Geo.  2.  c.  24, 
sect.  17,  to  prevent  bad  practices  upon  bankrupts,  who  have  not  ob- 
tained their  certificate;  and,  who  for  the  sake  of  obtaining  it,  will 
come  into  any  terms,  and  cause  their  friends  to  come  into  any  terms, 
which  a  hard  creditor  may  chuse  to  impose.  The  statute  prohibits 
"taking  any  money  or  security  from  the  bankrupt  himself,  or  any  per- 
son in  his  behalf,  as  the  consideration  for  sif/ninr/  his  certificate." 
Suppose  a  creditor  refuses,  unless  the  bankrupt  consents  to  give  him 
a  sum  of  money.  The  bankrupt  gets  the  money  from  a  friend  or  rela- 
tion, and  the  creditor,  in  conscfpience,  signs  the  certificate.  The  l)ank- 
rupt  renews  his  trade,  and  receives  every  advantage  he  can  derive  from 
having  obtained  his  certificate.  He  may  notwithstanding  bring  his  ac- 
tion and  recover  the  money  back.  And  this,  though  h6  has  acted  con- 
trary to  law  made  for  his  own  benefit.  Vide  Smith  v.  Bromley,  Dougl. 
Rep.  070  n.  This  brings  the  present  case  witliin  tlie  determination  of 
Jaques  I'.  Golightly,  in  C.  B.  For  in  that  case,  the  Chief  .Iiisiiee  said, 
"the  statute  is  made  to  protect  the  ignorant  and  deluded  imiliitude, 
who  in  hopes  of  gain  and  prizes,  and  not  conversant  in  ealeuhitions, 
are  drawn  in  l)y  the  olliee-keepers."  And  it  is  very  material,  that  the 
statute  itself,  by  the  distinction  it  makes,  has  marked  tlie  criminal: 
For  the  penalties  are  all  on  one  side;  upon  the  office-keeper.  The 
man  who  makes  the  contract,  is  liable  to  no  penalty.     So  in  usury, 


CHAP.    II.]  BROWNING    V.    MORRIS.  671 

there  is  no  penalty  upon  the  party  who  is  imposed  upon.  It  is  true, 
that  in  these  cases,  the  court  will  not  assist  the  party  who  makes  the 
illegal  contract  to  recover  any  money  he  may  win  of  the  office-keeper; 
but  he  shall  have  this  action  for  all  the  money  which  the  office-keeper 
has  got  from  him.^ 

After  Lord  Mansfield  had  proceeded  thus  far,  it  occurred  that 
the  plaintiff  was  himself  a  lottery-office-keeper,  and  brought  his  ac- 
tion, not  for  money  paid  by  him  to  the  defendant  for  insuring;  but  for 
money  paid  by  him  to  the  defendant  in  consequence  of  his  having  in- 
sured the  defendant's  tickets.  So  that  the  plaintiff  was  not  only  in 
pari  delicto,  but  also  stood  in  the  light  and  under  the  description  of 
that  species  of  insurer,  from  whom  the  statute  meant  to  protect  the 
unwary. 

And  the  court  were  finally  of  this  opinion  (allowing  the  determina- 
tion of  the  Common  Pleas  to  be  right)  and  accordingly,  a  nonsuit  was 
entered. 

'Accord:  Jaques  v.  Golightly  (1776)  2  W.  Blackstone,  1073;  Jaques  v. 
Withy  (1788)  1  H.  Blackstone,  65;  Barclay  v.  Pearson,  L.  R.  [1893]  2  Ch.  154; 
Gray  v.  Roberts  (1820)  2.  A.  K.  Marshall,  208 ;  Mount  v.  Waite  (1811)  7  Johns. 
434.  Upon  the  same  principle,  a  recovery  of  a  usurious  rate  of  interest  has 
been  allowed;  see  p.  156.  A  recovery  was  allowed  in  Williams  v.  Hedley 
( 1807)  8  East,  378,  when  the  plaintiff  had  paid  money  to  compromise  a  qui  tarn 
action  for  usury,  "for  the  prohibition  of  18  Eliz.  C.  5  attaches  only  on  the  in- 
former or  plaintiff  or  other  jDerson  suing  out  process  in  the  penal  action,  mak- 
ing composition  contrary  to  the  statute,"  or  when  a  statute  prohibits  an  at- 
torney from  charging  above  a  certain  amount  for  his  services.  Smart  v.  White 
(1882)  73  Maine,  332;  Ladd  v.  Bartog  (1886)  64  X.  H.  613.  Likewise,  in  a 
similar  case,  a  recovery  was  allowed  upon  the  contract  itself  by  Chief  Judge 
Parker  in  Irwin  v.  Curie  (1902)  171  N.  Y.  409;  Selden,  J.,  in  Tracy  v.  Tal- 
mage  (1856)  14  N.  Y.  162,  181,  said:  "There  are  two  classes  of  cases.  .  .  .  The 
first  consists  in  a  series  of  cases  in  which  a  distinction  has  been  taken  between 
those  illegal  contracts  when  both  parties  are  equally  culpable,  and  those  in 
which,  although  both  have  participated  in  the  illegal  act,  the  guilt  rests  chiefly 
upon  one.  The  maxim  ex  dolo  malo  non  oritur  actio  is  qualified  by  another, 
viz.,  in  pari  delicto  melior  est  conditio  defcndentis.  Unless,  therefore,  the 
parties  are  in  pari  delicto,  as  well  as  particeps  criminis,  the  courts,  although 
the  contract  be  illegal,  will  afford  relief,  when  equity  requires  it,  to  the  more 
innocent  party.  ...  If  malum  in  se  the  courts  will  in  no  case  interfere  to 
relieve  either  party  from  any  of  its  consequences.  But  when  the  contract 
neither  involves  moral  turpitude  nor  violates  any  general  principle  of  public 
policy,  and  money  or  property  has  been  advanced  under  it,  relief  will  be 
granted  to  the  party  making  the  advance.  1,  when  he  is  not  in  pari  delicto:  or, 
2,  in  some  cases  when  he  elects  to  disaffirm  the  contract  while  it  remains  ex- 
ecutory."— Ed. 


672  WHITE  r.  THE  euanklix  bank.  [book  ii. 

•  *- 

WHITE  V.  THE  FRANKLIN  BANK. 

Supreme  Judicial  Court  of  Massachusetts,  1839. 
[22  Pickering,  181.] 

Wilde,  J.,  delivered  the  opinion  of  the  Court.  The  first  ground  of 
the  defence  is,  that  the  action  was  prematurely  commenced.  The 
entry  in  the  book  given  to  the  plaintiff  by  the  cashier  of  the  bank,  is 
undoubtedly  good  evidence  of  a  promise  to  pay  the  amount  of  the  de- 
posit on  the  10th  day  of  August;  and  if  this  was  a  valid  and  legal 
promise,  this  action  cannot  be  maintained.  But  it  is  very  clear,  that 
this  promise  or  agreement  that  the  deposit  should  remain  in  the  bank 
for  the  time  limited,  is  void  by  virtue  of  the  Revised  Stat.  c.  36,  §  57, 
which  provides  that  no  bank  shall  make  or  issue  any  note,  bill,  check, 
draft,  acceptance,  certificate  or  contract,  in  any  form  whatever,  for 
the  payment  of  money,  at  any  future  day  certain,  or  with  interest, 
excepting  for  money  that  may  be  borrowed  of  the  Commonwealth, 
with  other  exceptions  not  material  in  the  present  case. 

The  agreement  that  the  deposit  should  remain  until  the  10th  day 
of  August  amounts  in  law,  by  the  obvious  construction  and  meaning 
of  it,  to  a  promise  to  pay  on  that  day.  This  therefore  was  an  illegal 
contract  and  a  direct  contravention  of  the  statute.  Such  a  promise 
is  void ;  and  no  court  will  lend  its  aid  to  enforce  it.  This  is  a  well  set- 
tled principle  of  law.  It  was  fully  discussed  and  considered  in  the 
case  of  Wheeler  v.  Russell,  17  Mass.  R.  281;  and  the  late  Chief  Jus- 
tice, in  delivering  the  opinion  of  the  Court,  remarked,  "tliat  no  prin- 
ciple of  law  is  better  settled,  than  that  no  action  will  lie  upon  a  con- 
tract made  in  violation  of  a  statute,  or  of  a  principle  of  the  common 
law."  The  same  principle  is  laid  down  in  Springfield  Bank  v.  Mer- 
rick, 14  Mass.  R.  322,  and  in  Russell  v.  Do  Grand,  15  :\Iass.  R.  39. 
In  Belding  v.  Pitkin,  2  Calnes's  R.  149,  Tiiomi-sox,  ,).,  said  "it  is  a 
first  principle,  and  not  to  he  touched,  that  a  contract,  in  order  to  be 
binding,  must  be  lawful."  The  same  principle  is  fully  established  by 
the  English  authorities.  In  Shiffner  v.  Gordon,  12  East,  304,  Lord 
ELLExnoKOUGii  laid  it  down  as  a  settled  rule,  "that  where  a  contract 
which  is  illegal,  remains  to  be  executed,  the  court  will  not  assist  either 
party,  in  an  action  to  recover  for  the'^on-execution  of  it." 

It  is  therefore  very  clear,  we  think,  that  no  action  can  be  main- 
tained on  the  defendants'  express  promise,  and  that  if  the  plaintiff  be 
entitled  to  recover  in  any  form  of  action,  it  musfbe  founded  on  an 
implied  promise. 

The  second  objection,  and  thai  <m  which  the  defendants'  counsel 
principally  rely,  proceeds  on  the  admission  that  the  contract  is  illegal; 
and  they  ittsist  that  where  money  has  been  paid  by  one  of  two  par- 


CHAP.    II.]  WHITE    V.    THE    FRANKLIN    BANK.  673 

ties  to  the  other,  on  an  illegal  contract,  both  being  participes  criminis, 
no  action  can  be  maintained  to  recover  it  back.  The  rule  of  law  is  so 
hiid  down  by  Lord  Kenyon,  in  Howson  v.  Hancock,  8  T.  R.  577,  and 
in  other  cases.  This  rule  may  be  correctly  stated  in  respect  to  con- 
tracts involving  any  moral  turpitude,  but  when  the  contract  is  merely 
malum  prohibitum,  the  rule  must  be  taken  with  some  qualifications 
and  exceptions,  without  which  it  cannot  be  reconciled  with  many  de- 
cided cases.  The  rule  as  stated  by  Comyns,  in  his  treatise  on  con- 
tracts, will  reconcile  most  of  the  cases  which  are  apparently  conflict- 
ing. "When  money  has.  been  paid  upon  an  illegal  contract,  it  is 
a  general  rule,  that  if  the  contract  be  executed,  and  both  parties  are 
in  pan  delicto,  neither  of  them  can  recover  from  the  other  the  money 
so  paid ;  but  if  the  contract  continues  executory,  and  the  party  paying 
the  money  be  desirous  of  rescinding  it,  he  may  do  so,  and  recover 
back  his  deposit  by  action  of  iridehitatus  assumpsit  for  money  had 
and  received.  And  this  distinction  is  taken  in  the  books,  namely, 
where  the  action  is  in  affirmance  of  an  illegal  contract,  the  object  of 
which  is  to  enforce  the  performance  of  an  engagement  prohibited  by 
law,  clearly  such  an  action  can  in  no  case  be  maintained;  but  where 
the  action  proceeds  in  disaffirmance  of  such  a  contract,  and,  instead 
of  endeavouring  to  enforce  it,  presumes  it  to  be  void  and  seeks  to 
prevent  the  defendant  from  retai-ning  the  benefit  which  he  derived 
from  an  unlawful  act,  there  it  is  consonant  to  the  spirit  and  policy  of 
the  law,  that  the  plaintiff  should  recover."    2  Com.  on  Contr.  109. 

The  rule,  with  these  qualifications  and  distinctions,  is  well  sup- 
ported by  the  cases  collected  in  Comyns  and  by  later  decisions.  The 
question  then  is,  whether,  in  conformity  with  these  principles,  upon 
the  facts  agreed,  this  action  can  be  maintained. 

The  next  answer  to  the  objection  of  the  defendants  is,  that  although 
the  plaintiff  may  l)e  considered  as  being  particeps  criminis  with  the 
defendants,  they  are  not  in  pari  delicto.  It  is  not  universally  true, 
that  a  party,  who  pays  money  as  the  consideration  of  an  illegal  con- 
tract, cannot  recover  it  back.  Whe^e  the  parties  are  not  in  pari  de- 
licto, the  rule  potior  est  conditio  defendentis.  is  not  applicable.  In 
Lacaussade  v.  White,  7  T.  R.  535,  the  court  say,  "that  it  was  more 
consonant  to  the  principles  of  sound  policy  and  justice,  that  wherever 
money  has  been  paid  upon  an  illegal  consideration  it  may  be  recov- 
ered back  again  by  the  p'arty  who'  has  thus  improperly  paid  it,  than, 
by  denying  the  remedy,  to  give  effect  to  the  illegal  contract." 

This  principle  however  is  not  by  law  allowed  to  operate  in  favor 
of  either  party,  where  the  illegality  of  the  contract  arises  from  any 
moral  turpitude.  In  such  cases  the  court  will  not  undertake  to  as- 
certain the  relative  guilt  of  the  parties,  or  afford  relief  to  either. 

But  where  money  is  paid  on  a  contract  which  is  merely  prohibited 
by  statute,  and  the  receiver  is  the  principal  offender,  he  may  be  com- 
pelled to  refund.     This  is  not  only  consonant  to  the  principles  of 


67-i  WHITE   V.    THE    FRANKLIX    BANK.  [BOOK    II, 

sound  policy  and  justice,  but  is  now  so  settled  by  authority,  what- 
ever doubts  may  have  been  entertained  respecting  it  in  former  times. 

In  the  case  of  Smith  v.  Bromley,  2  Dougl.  696,  note,  it  was  de- 
cided, that  the  plaintiff  was  entitled  to  recover  in  an  action  for  money 
had  and  received,  for  money  paid  by  the  plaintiff  to  the  defendant  for 
the  purpose  of  inducing  him  to  sign  the  certificate  of  a  bankrupt,  the 
plaintiff's  sister.  Lord  Mansfield  laid  down  the  doctrine  on  this 
point,  which  has  been  repeatedly  confirmed.  "If  the  act  is  in  itself 
immoral,  or  a  violation  of  the  general  laws  of  public  policy,  there  the 
party  paying  shall  not  have  this  action;  for  where  both  parties  are 
equally  criminal  against  such  general  laws,  the  rule  is  potior  est  con- 
ditio defendentis.  But  there  are  other  laws  which  are  calculated  for 
the  protection  of  the  subjects  against  oppression,  extortion,  deceit, 
&c.  If  such  laws  are  violated,  and  the  defendant  takes  advantage  of 
the  plaintiff's  condition  or  situation,  there  the  plaintiff  shall  recover.'* 
And  this  doctrine  was  afterwards  adhered  to  and  confirmed  by  the 
whole  court,  in  the  case  of  Jones  v.  Barkley,  2  Dougl.  684. 

On  this  distinction  it  has  ever  since  been  held,  that  where  usurious- 
interest  has  been  paid,  the  excess  above  the  legal  interest  may  be  re- 
covered back  by  the  borrower  in  an  action  for  money  had  and  re- 
ceived. So  money  paid  to  a  lottery-office-keeper  as  .a  premium  for  an 
illegal  insurance,  is  recoverable  back,  in  an  action  for  money  had 
and  received.  Jaques  v.  Golightly,  3  W.  Bl.  1073.  But  in  Browning 
V.  Morris,  Cowper,  790,  it  was  decided,  that  where  a  lottery-office- 
keeper  pays  money  in  consequence  of  having  insured  the  defendant's 
tickets,  such  contract  being  prohibited  by  the  St.  17  Geo.  3,  c.  46, 
he  cannot  recover  it  back,  though  the  premium  of  insurance  paid  by 
the  insured  to  the  lottery-office-keeper  might  be.  The  distinction, 
on  which  this  case  was  decided,  is  very  material  in  the  present  case. 
Lord  Maxsfield  referred  to  the  determination  in  Jaques  v.  Golightly, 
where  it  was  said,  "that  the  statute  is  made  to  prcrtect  the  ignorant 
and  deluded  multitude,  who,  in  hopes  of  gain  and  prizes,  and  not 
conversant  in  calculations,  are  drawn  in  by  the  office-keepers."  And 
he  adds,  "it  is  very  material,  that  the  statute  itself,  by  the  distinc- 
tion it  makes,  has  marked  the  criminal ;  for  the  penalties  are  all  on 
one  side;  upon  the  office-keeper.  The  man  who  makes  the  con- 
tract is  liable  to  no  penalty.  So  in  usury,  there  is  no  penalty 
noticed  and  enforced  by  Lord  Ellenborougii,  in  Williams  v.  Hed- 
ley,  8  East,  378.  In  that  case  it  was  decided,  that  where  money  wa& 
paid  to  a  plaintiff  to  compromise  a  qvi  tarn  action  for  usury,  it  might 
be  recovered  back  in  an  action  for  money  had  and  received ;  because 
the  prohibition  and  penalties  of  the  St.  18  Eliz.  c.  5,  attached  only 
on  "the  informer  or  plaintiff,  or  other  person  suing  out  process  in 
the  penal  action,  making  composition,  &c."  It  was  argued  for  the 
defendant  in  that  case,  "that  a^5  the  act  of  the  defendant  co-operated 
with  that  of  the  plaintiff  in  producing  the  mischief  meant  to  be  pre- 


CHAP.   II.]  WHITE   V.   THE   FRANKLIN   BANK.  675 

vented  and  restrained  by  the  statute,  it  was  so  far  illegal,  on  the 
part  of  the  defendant  himself,  as  to  preclude  him  from  any  remedy 
by  suit  to  recover  back  money  paid  by  him  in  furtherance  of  that  ob- 
ject; and  that  if  he  was  not  therefore  to  be  considered  as  strictly  i?i 
pari  ddicto  with  the  plaintifE  in  the  qui  tarn  action,  he  was  at  any 
rate  particeps  criminis,  and  in  that  respect  not  entitled  to  recover 
from  his  co-delinquent,  money  which  he  had  paid  him  in  the  course 
and  prosecution  of  their  mutual  crime."  This  argument  was  over- 
ruled, and  Lord  Ellenborough  fully  approved  the  doctrine  laid 
down  by  Lord  Mansfield  in  Smith  v.  Bromley,  and  the  decisions  in 
the  several  cases  in  which  that  doctrine  has  been  confirmed.  The 
same  distinction  has  been  recognized  in  other  cases,  and  was  adopted 
by  this  Court  in  Worcester  v.  Eaton,  11  Mass.  E.  376,  in  which 
Parker^  C.  J.,  after  referring  to  the  above  cases,  said:  "This 
distinction  seems  to  have  been  ever  afterwards  observed  in  the  Eng- 
lish courts ;  and  being  founded  in  sound  principle,  is  worthy  of  adop- 
tion, as  a  principle  of  the  common  law  in  this  country." 

The  principle  is,  in  every  respect,  applicable  to  the  present  case, 
and  is  decisive.  The  prohibition  is  particularly  levelled  against  the 
bank,  and  not  against  any  person  dealing  with  the  bank.  In  the 
words  of  Lord  Mansfield,  "the  statute  itself,  l^y  the  distinction  it 
makes,  has  marked  the  criminal."  The  plaintiff  is  subject  to  no  pen- 
alty, but  the  defendants  are.  liable  for  the  violation  of  the  statute 
to  a  forfeiture  of  their  charter.  To  decide,  that  this  action  cannot  be 
maintained,  would  be  to  secure  to  the  defendants  the  fruits  of  an 
illegal  transaction,  and  would  operate  as  a  temptation  to  all  banks  to 
violate  the  statute,  by  taking  advantage  of  the  unwary,  and  of  those 
who  may  have  no  actual  knowledge  of  the  existence  of  the  prohibition 
of  the  statute,  and  who  may  deal  with  a  bank  without  any  suspicion 
of  the  illegality  of  the  transaction  on  the  part  of  the  l^ank. 

There  is  still  another  ground,  on  which  the  plaintiff's  counsel  rely. 
This  action  proceeds  in  disaffirmance  of  an  executory  illegal  contract, 
and  was  commenced  before  the  money  which  the  defendants  con- 
tracted to  pay,  was  by  the  terms  of  the  contract  payable ;  the  plaintiff 
therefore  had  a  right  to  rescind  the  contract  or  rather  to  treat  it  as  a 
void  contract,  and  to  recover  back  the  consideration  money. 

It  was  so  decided  in  Walker  v.  Chapman,  Lofft,  342,  where  money 
had  been  paid,  in  order  to  procure  a  place  in  the  customs,  but  the  place 
had  not  been  procured;  and  in  an  action  brought  by  the  party  who 
paid  the  money,  it  was  held,  that  he  should  recover,  because  the  con- 
tract continued  executory.  This  case  was  cited  with  approbation  by 
Buller,  J.,  in  Lowry  v.  Bourdieu,  2  Dougl.  470 ;  and  the  distinction 
between  contracts  executed  and  executory,  he  said,  was  a  sound  one. 
The  same  distinction  has  been  recognized  in  actions  brought  to  re- 
cover back  moijey  paid  on  illegal  wagers,  where  both  parties  were  in 
pari  delicto.    The  case  of  Tappenden  v.  Eandall,  2  Bos.  &  Pul.  467, 


676  WHITE    V.    THE    FRANKLIN    BANK.  '  [BOOK    II. 

was  decided  on  that  distinction.  Heath,  J.,  said,  "it  seems  to  me, 
that  the  distinction  adopted  by  Mr.  Justice  Buller  between  contracts 
executory  and  executed,  if  taken  with  those  modifications  which  he 
would  necessarily  have  applied  to  it,  is  a  sound  distinction.  Un- 
doubtedly there  may  be  cases  where  the  contract  may  be  of  a  nature 
too  grossly  immoral  for  the  court  to  enter  into  any  discussion  of  it; 
as  where  one  man  has  paid  money  by  way  of  hire  to  another  to  murder 
a  third  person.  But  where  nothing  of  the  kind  occurs,  I  think  there 
ought  to  be  locus  pcenitentice,  and  that  a  party  should  not  be  compelled 
against  his  will  to  adhere  to  the  contract."  The  same  distinction  is 
recognized  in  several  other  cases.  5  T.  R.  405 ;  1  H.  Bl.  67 ;  7  T.  R. 
535;  3  Taunt.  277;  4  Taunt.  290. 

In  the  case  of  Aubert  v.  Walsh,  3  Taunt.  277,  the  authorities  were 
considered,  and  the  law  was  definitely  settled  as  above  stated ;  and  it 
does  not  appear  that  it  has  ever  since  been  doubted.  In  Utica  Ins. 
Co.  V.  Kip,  8  Cowen,  20,  the  same  principle  is  recognized,  although 
the  case  was  not  expressly  decided  on  that  point.  The  distinction 
seems  to  be  founded  in  wise  policy,  as  it  has  a  tendency  in  some 
measure  to  prevent  the  execution  of  unlawful  contracts,  and  can  in 
no  case  work  injustice  to  either  party. 

It  is  however  denied  by  the  defendant's  counsel,  that  the  contract 
in  question  was  executory,  within  the  true  intent  and  meaning  of 
these  decisions,  and  the  doctrine  now  laid  down.  This  question  has 
not  been  much  discussed,  and  it  is  not  necessary  to  decide  it  in  the 
present  case,  the  Court  being  clearly  of  opinion,  that  the  phv'ntiff  is 
entitled  to  recover  on  the  other  grounds  mentioned.  We  have  con- 
sidered the  question  as  to  the  distinction  between  executory  and  ex- 
ecuted contracts,  because  it  may  be  of  some  importance  that  the  law 
in  that  respect  should  not  be  supposed  to  be  doubtful  in  our  opinion ; 
which  might  be  inferred,  perhaps,  if  we  should  leave  this  question 
unnoticed. 

The  only  remaining  question  is,  whether  the  plaintiff  was  bound  to 
make  a  demand  on  the  bank  before  he  commenced  his  action.  The 
general  rule  is,  that  where  money  is  due  and  payable,  an  action  will 
lie  without  any  previous  demand.  But  where  money  is  deposited  in 
a  bank  in  the  usual  course  of  business,  we  should  certainly  hold,  that 
a  previous  demand  would  be  requisite.  But  if  money  should  be  ob- 
tained by  a  bank  by  fraud,  or,  as  in  the  present  case,  by  means  of  an 
illegal  contract,  the  bank  claiming  to  hold  it  under  such  contract, 
there  can  be  no  good  reason  given  why  the  bank  should  bo  exempted 
from  the  operation  of  the  general  rule.  In  Clark  v.  Moody,  17  Mass. 
R.  145,  it  was  held,  that  if  a  factor  should  render  an  untrue  account, 
claiming  a  greater  credit  than  he  was  entitled  to,  the  principal  would 
have  a  right  of  action  without  a  demand. 

If  the  defendants  had  sold  to  the  plaintiff  a  post-note  payable  at  a 
future  day,  it  could  hardly  be  doubted  that  an  action  would  lie  to 


CHAP.    II.]  DUVAL    V.    WELLMAN.  677 

recover  back  the  consideration  money,  without  any  previous  demand; 
and  there  seems  to  be  no  substantial  distinction  between  such  a  case 
and  the  one  in  question.^ 

Judgment  on  default. 


DUVAL  V.  WELLMAN. 

Court  of  Appeals,  1891. 
[124:  New  York,  156.] 

Brown,  J.  The  record  before  us  does  not  contain  the  pleadings, 
and  we  are  not  informed  of  the  grounds  upon  which  the  plaintiff 
therein  based  his  right  to  recover.  The  case  has,  however,  been  dis- 
posed of  in  defendant's  favor  in  the  court  below  on  the  ground  that 
the  contract  between  the  parties,  upon  which  the  money  was  paid,  was 
illegal,  and  that  the  plaintiff's  assignor  was  particeps  criminis,  and 
equal  in  guilt  with  the  defendant. 

But  whether  the  cause  of  action  was  based  upon  the  contract,  or 
upon  the  illegality  of  the  contract,  and  in  disaffirmance  thereof,  does 
not  appear. 

The  questions  discussed  in  the  lower  courts  have,  however,  been 
regarded  as  of  sufficient  importance  to  receive  the  consideration  of 
this  court",  and  as  they  were  the  only  ones  discussed  at  our  bar,  we 
may  confine  our  observations  to  them  without  regard  to  the  particular 
issue  made  by  the  pleadings. 

It  appears  from  the  evidence  that  the  plaintiff  is  the  assignee  of 
Mrs.  E.  Guion,  a  widow  lady,  who,  in  her  search  for  a  husband,  sought 
the  advice  and  aid  of  the  defendant,  who  was  the  owner  and  pub- 
lisher of  a  matrimonial  journal  called  "The  New  York  Cupid,"  and 
the  proprietor  of  a  matrimonial  bureau  in  New  York  City. 

Mrs.  Guion's  testimony  was  to  the  effect  that  in  June,  1886,  she 
became  a  patron  of  the  defendant's  establishment,  and  paid  the  usual 
registration  fee  of  five  dollars.  That  she  was  introduced  to  thirty  or 
forty  gentlemen,  but  found  none  whom  she  was  willing  to  accept  as  a 
husband,  and  that  in  June,  1887,  for  the  purpose  of  stimulating  the 

'Accord:  Parkersburg  v.  Brown  (1882)  106  U.  S.  487:  Tracy  v.  Talmage 
(1856)  14  N.  Y.  162;  the  Oneida  Bank  v.  the  Ontario  Bank  (1860)  21  N.  Y. 
490.  Likewise,  it  has  been  held  that  the  corporation  could  revoke  the  consid- 
eration when  the  contract  was  neither  malum  in  se  or  malum  prohibitum,  but 
merely  not  within  its  express  or  implied  powers.  Leigh  v.  American  Brake 
Beam  Co.  (1903)  205  111.  147.  As  a  corporation  has  constructive  notice  of  its 
own  ultra  vires  acts,  it  would  seem  that  a  demand  prior  to  the  action  is  im- 
material. Dill  V.  Wareham  (1844)  7  Mete.  438,  and  that,  therefore,  interest 
should  run  from  the  time  of  the  loan.  3  Columbia  Law  Review  124,  but  see 
Brennan  v.  Gallagher  (1902)   199  111.  207.— Ed. 


678  DUVAL    V.    WELLMAN.  [BOOK    II, 

defendant's  efforts  in  her  behalf,  she  paid  him  fifty  dollars,  where- 
upon there  was  executed  the  following  instrument : 

"Jwie  2nd,  1887. 
"Due  Mrs.  Guion  from  Mr.  Wellman  fifty  dollars  ($50.00),  Aug. 
15th,  if  at  that  time  she  is  willing  to  give  up  all  acquaintance  with 
gentlemen  who  were  introduced  in  any  manner  by  H.  B.  Wellman.  If 
Mrs.  Guion  marry  the  gentleman  whom  we  introduce  her  to,  an  addi- 
tional fifty  dollars  ($50.00)  is  due  Mr.  Wellman  from  Mrs.  Guion. 

"(Signed.)  H.  B.  WELLMAN. 

"E.  GUION." 

In  August,  1887,  Mrs.  Guion,  not  finding  a  congenial  companion 
among  any  of  the  men  to  whom  she  had  been  introduced  and  claiming 
to  be  willing  to  give  up  all  acquaintance  with  them,  demanded  from 
defendant  the  return  of  the  money  paid,  which,  being  refused,  the 
claim  was  assigned  to  plaintiff  and  this  action  was  commenced. 

The  five  learned  judges  who  have  delivered  opinions  in  the  case 
have  agreed  that  the  contract  between  the  parties  was  void,  and  this 
conclusion  appears  to  be  amply  supported  by  authority.  1  Story  Eq. 
Jurisprudence,  §§  2G0-264;  3  Pomeroy  Eq.  Jurisprudence,  §  931; 
Willard's  Eq.  Jurisprudence,  211;  Bacon's  Abridgment,  Title  Mar- 
riage &  Divorce,  D. ;  Fonblanque's  Eq.  Ch.  I,  §  10;  Boynton  v.  Hub- 
bard, 7  Mass.  112;  Crawford  v.  Eussell,  62  Barb.  92. 

Judge  Story,  after  discussing  the  grounds  upon  which  courts  of 
equity  interfere  in  cases  of  this  kind,  says:  "It  is  now  firmly  estab- 
lished that  all  such  contracts  are  utterly  void  as  against  public  policy 
*  *  *,"  and  Chief  Justice  Parsons  said,  in  Boynton  v.  Hubbard 
(supra),  that  "these  contracts  are  void  *  *  *  because  they  have 
a  tendency  to  cause  matrimony  to  be  contracted  on  mistaken  principles 
and  without  the  advice  of  friends,  and  they  are  relieved  against  as  a 
general  mischief  for  the  sake  of  the  public." 

The  doctrine  that  marriage  brokerage  contracts  are  void  is  the  out- 
growth of  the  views  and  opinions  of  the  English  people  upon  the  sub- 
ject of  the  marriage  relation,  and  the  courts  of  England,  for  upwards 
of  a  century,  have  universally  declared  that  the  natural  consequences 
of  such  agreements  Avonld  he  to  bring  about  ill-advised,  and,  in  many 
instances,  fraudulent  marriages,  resulting  inevitably  m  the  destruc- 
tion of  the  hopes  and  fortunes  of  the  weaker  party,  and  especially  of 
women,  and  that  every  temptation  in  the  exercise  of  undue  influence 
in  procuring  a  marriage  should,  therefore,  be  suppressed  The  de- 
fendant has,  however,  succeeded  in  the  lower  court  upon  the  applica- 
tion of  the  rule  that  a  court  will  not  lend  its  aid  to  either  of  the  par- 
ties to  an  illegal  or  fraudulent  contract,  either  by  enforcing  its  execu- 
tion if  it  be  executory,  or  by  rescinding  it  if  it  be  executed. 

Public  policy  has  dictated  the  adoption  of  this  rule,  but  it  has  its 


CHAP.    II.]  DUVAL    V.    WELLMAN.  679 

limitations,  and  when  the  parties  are  not  equally  guilty,  or  when  the 
public  interest  is  advanced  by  allowing  the  more  excusaljle  of  the  two 
to  sue  for  relief,  the  courts  will  aid  the  injured  party  by  setting  aside 
the  contract  and  restoring  him,  so  far  as  possible,  to  his  original  posi- 
tion.    1  Pomeroy's  Equity,  §  403 ;  1  Story's  Equity,  §  300. 

It  is  not  sufficient  for  the  defendant  to  show  merely  that  the  other 
contracting  party  is  particeps  criminis,  but  it  must  appear  that  both 
are  equal  in  guilt  unless  the  contract  be  malum  in  se,  in  which  case 
the  maxim  Ex  dolo  malo  non  oritur  actio  is  of  universal  application. 

This  subject  received  very  full  consideration  in  the  case  of  Tracy 
V.  Talmage,  14  N.  Y.  163,  and  it  was  there  said  that  unless  the 
parties  are  in  pari  delicto  as  well  as  particeps  criminis,  the  courts, 
although  the  contract  is  illegal,  will  afford  relief  to  the  more  innocent 
party. 

Upon  the  application  of  this  doctrine,  in  Mount  v.  Waite,  7  Johns. 
Eep.  433,  premiums  paid  for  the  insurance  of  lottery  tickets  were  re- 
covered, the  plaintiff  being  held  not  to  be  equal  in  guilt  with  the  de- 
fendants. 

In  Wheatan  v.  Hibbard,  20  Johns.  Eep.  290,  it  was  held  that  usuri- 
ous interest  paid  by  a  borrower  could  be  recovered  independent  of  the 
statute,  and  that  the  maxim  inter  partes  in  pari  delicto  potior  est  con- 
ditio defendentis  did  not  apply,  as  the  law  considered  the  borrower 
the  victim  of  the  usurer,  and  Lord  Mansfield  laid  down  the  rule  that 
in  transactions  prohibited  by  statute  for  the  protection  of  one  set  of 
men  from  another  set  of  men  the  parties  are  not  in  pari  delicto. 
Browning  v.  Morris,  2  Cowp.  790.  See  also  Schroeppel  v.  Corning, 
^  N.  Y.  107-115,  116. 

It  will  appear  from  an  examination  of  the  authorities  upon  this 
subject,  a  very  few  only  of  which  are  cited,  that  courts,  1)oth  of  law 
and  equity,  have  held  that  two  parties  may  concur  in  an  illegal  act 
without  being  deemed  in  all  respects  in  pari  delicto. 

In  many  such  cases  relief  from  the  contract  will  be  afforded  to  the 
least  guilty  party  when  he  appears  to  have  acted  under  circumstances 
of  imposition,  hardship,  or  undue  influence,  and  especially  where  there 
is  a  necessity  of  supporting  public  interests,  or  a  well  settled  policy 
of  the  law,  whether  that  policy  l^e  declared  in  the  statutes  of  the  state 
or  be  the  outgrowth  of  the  decisions  of  the  courts. 

Accordingly  many  cases  may  be  cited  where  relief  has  been  granted 
from  contracts  which  partook  of  the  character  of  marriage  brokerage 
agreements.  The  cases  are  collected  in  Pomeroy's  Equity  Jurispru- 
dence, in  a  note  to  section  931 ;  in  Fonblanques  Eq.,  B.  I,  ch.  4,  §§  10, 
11,  and  Bacon's  Abridgment,  Title  Marg.  and  Divrs.  541  et  seq.,  and 
need  not  be  cited  here. 

In  two  of  the  cases  referred  to,  money  paid  under  the  contract  was 
recovered  back.  Smith  v.  Bruning,  2  Vern.  392 ;  Goldsmith  v.  Brun- 
Ing,  1  Eq.  Cases  Abr.  89. 


680  DUVAL    V.    WELLMAN.  [BOOK    II, 

The  question  in  this  and  kindred  eases,  therefore,  must  always  be 
whether  the  parties  are  equal  in  guilt.  Obviously  cases  might  arise 
where  this  would  clearly  appear  and  where  the  court  would  be  justified 
in  so  holding  as  a  matter  of  law,  as  where  there  was  an  agreement  be- 
tween two,  having  for  its  purpose  the  marriage  of  one  to  a  third 
party,  the  parties  would  be  so  clearly  in  pari  delicto  that  the  courts 
would  not  aid  the  one  who  had  paid  money  to  the  other  in  the  promo- 
tion of  the  common  purpose,  to  recover  it  back.  Such  a  case  would 
partake  of  the  character  of  a  conspiracy  to  defraud.  So  if  two  parties 
entered  into  a  partnership  to  carry  on  such  a  business  as  defendant 
conducted,  the  courts  would  not  lend  their  aid  to  either  to  enforce 
the  agreement  between  them. 

But  where  a  party  carries  on  a  business  of  promoting  marriage  as 
the  defendant  appears  to  have  done,  it  is  plain  to  be  seen  that  the 
natural  tendency  of  such  a  business  is  immoral  and  it  would  be  so 
clearly  the  policy  of  the  law  to  suppress  it  and  public  interest  would 
be  so  greatly  promoted  by  its  suppression,  that  there  .would  be  no  hesi- 
tation upon  the  part  of  the  courts  to  aid  the  party  who  had  patron- 
ized such  a  business  by  relieving  him  or  her  from  all  contracts  made, 
and  grant  restitution  of  any  money  paid  or  property  transferred.  In 
that  way  only  could  the  policy  of  the  law  be  enforced  and  public  in- 
terests promoted. 

Contracts  of  this  sort  are  considered  as  fraudulent  in  their  char- 
acter and  parties  wlw  pay  money  for  the  purpose  of  procuring  a  hus- 
band or  wife  will  be  regarded  as  under  a  species  of  imposition  or  undue 
influence. 

The  subject  is  classed  by  all  text  writers  under  the  head  of  con- 
structive or  implied  fraud,  and  it  is  upon  the  application  of  rules 
which  belong  to  that  branch  of  the  law  that  the  cases  have  been  de- 
cided to  wbich  I  have  referred. 

We  are  of  the  opinion,  therefore,  that  it  was  error  to  hold  as  a  legal 
conclusion  that  tlio  parties  to  the  contract  in  question  were  c(iual  in 
guilt. 

The  learned  General  Term  of  the  Common  Pleas  appeared  to  have 
considered  that  the  voluntary  character  of  Mrs.  Guion's  acts  was  de- 
cisive of  this  question  and  deprived  her  of  the  right  of  recovery. 

It  is  true  there  is  no  evidence  of  actual  over-persuasion  or  undue 
influence. 

But  at  most  the  inferences  to  be  drawn  from  these  facts  were  for 
the  jury. 

The  prominent  fact  in  the  case  is  that  such  a  place  as  the  defendant 
maintained  existed  in  the  community  with  its  evil  surroundings  and 
immoral  tendencies. 

What  influence  was  exerted  upon  (lie  mind  of  the  widow  by  the 
mere  fact  of  the  existence  of  such  a  place  to  which  resort  could  be 
had,  cannot  of  course  appear  except  by  inference.    But  if  the  evidence 


CHAP.    II.]  TEXAXT    V.    ELLIOTT.  681 

was  not  sufficiently  strong  to  authorize  the  court  to  hold  as  a  question 
of  law  that  the  parties  were  not  in  pari  delicto  it  at  least  presented  a 
question  of  mixed  fact  and  law  for  the  jury. 

Our  opinion  is  that  the  same  reasons  that  have  induced  courts  to 
declare  contracts  for  the  promotion  of  marriage  void,  dictate  with 
equal  force  that  they  should  be  set  aside  and  the  parties  restored  to 
their  original  position.  To  decide  that  money  could  not  be  recov- 
ered back  would  be  to  establish  the  rules  by  which  the  defendant  and 
others  of  the  same  ilk  could  ply  their  trade  and  secure  themselves  in 
the  fruits  of  their  illegal  transactions. 

We  are  of  the  opinion,  therefore,  that  the  Common  Pleas  erred  in 
reversing  the  order  of  the  City  Court,  and  that  a  new  trial  should  have 
been  granted. 

The  order  appealed  from  should  be  reversed,  and  the  order  of  the 
General  Term  of  the  City  Court  affirmed,  with  costs. 

All  concur. 


Order  reversed. 


TENANT  V.  ELLIOTT. 

Common  Pleas,  1797. 

[1  Bosanquet  &  Fuller,  3.] 

Assumpsit  for  money  had  and  received.    Verdict  for  the  Plaintiff. 

The  Defendant  being  a  broker,  effected  an  insurance  for  the  Plain- 
tiff, a  British  subject,  on  goods  from  Ostend  to  the  East  Indies,  on 
board  the  Koenitz,  an  Imperial  ship.  The  ship  being  lost,  the  under- 
writers paid  the  amount  of  the  insurance  to  the  Defendant,  who, 
without  any  intimation  from  them  to  retain  the  money,  refused  to 
pay  it  over  to  the  Plaintiff. 

Shepherd,  Serjt.,  now  moved  for  a  rule  to  shew  cause  why  the 
verdict  in  this  case  should  not  be  set  aside,  and  a  nonsuit  entered. 
By  7  Geo.  1.  stat.  1.  c.  21.  s.  2.  it  is  enacted  "That  all  contracts 
and  agreements  whatsoever  made  or  entered  into  by  any  of  his 
Majesty's  subjects,  or  any  person  or  persons  in  trust  for  them,  for 
or  upon  the  loan  of  any  monies  by  way  of  bottomry  on  any  ship 
or  ships  in  the  service  of  foreigners,  and  bound  or  designed  to 
trade  in  the  East  Indies,  or  parts  in  the  said  act  before  mentioned; 

^In  Smith  v.  Bruning  (1700)  2  Vernon.  392,  "The  court  not  only  decreed  a 
Marriage  Brocage  bond  to  be  delivered  up,  but  a  gi-atuity  of  fifty  guineas 
actually  paid  to  be  refunded";  chancery  relieved  against  marriage  brocage 
bonds  from  an  early  date.  Carleston  v.  Kent  (1620)  Toth,  27;  Arundel  v. 
Thevillian  (16.34)  1  Ch.  Rep.  87;  Hall  v.  Poitter  (1695)  Shower's  Parliament 
Cases,  76. — Ed. 


€82  BALDWIX  BROS.  V.    POTTER.  [bOOK  II. 

and  all  contracts  and  agreements  whatsoever  made  by  any  of  his 
Majesty's  subjects,  or  any  person  or  persons  in  trust  for  them,  for 
the  loading  or  supplying  any  such  ship  or  ships  with  a  cargo  or 
lading  of  any  sort  of  goods,  merchandize,  treasure,  or  effects,  or 
with  any  provisions,  stores,  or  necessaries,  shall  be  and  are  hereby 
declared  to  be  void."  Now,  the  goods  on  board  the  Koenitz  be- 
ing the  property  of  the  Plaintiff,  a  subject  of  Great  Britain,  and 
the  Koenitz  being  a  foreign  ship,  bring  this  transaction  within  the 
provisions  of  the  above  act.  In  Camden  v.  Anderson,  6  Term 
Rep.  730,  it  was  determined,  that  a  policy  effected  in  contraven- 
tion of  an  act  of  parliament,  made  for  the  purpose  of  protecting 
the  monopoly  granted  to  the  East  India  company,  was  void.  The 
voyage  being  illegal,  makes  the  policy  illegal  also.  If  then  the 
Plaintiff  could  not  have  succeeded  in  an  action  against  the  under- 
writers, neither  can  he  recover  against  the  present  Defendant.  The 
Defendant  is  in  the  nature  of  a  stake-holder:  and  the  Plaintiff's 
right  of  action  being  grounded  on  his  claim  against  the  under- 
writers, he  must  now  stand  precisely  in  the  same  situation  as  if  he 
had  immediately  sued  them. 

BuLLER,  J.  Is  the  man  who  has  paid  over  money  to  another's 
use  to  dispute  the  legality  of  the  original  consideration?  Having 
once  waived  the  legality,  the  money  shall  never  come  back  into 
his  hands  again.  Can  the  Defendant  then  in  conscience  keep  the 
money  so  paid?  For  what  purpose  should  he  retain  it?  To  whom 
is  he  to  pay  it  over ;  who  is  entitled  to  it  but  the  Plaintiff  ? 

Eyre,  Ch.  J.  The  Defendant  is  not  like  a  stake-holder.  The 
question  is.  Whether  he  who  has  received  money  to  another's  use 
on  an  illegal  contract,  can  be  allowed  to  retain  it,  and  that  not  even 
at  the  desire  of  those  who  paid  it  to  him?     I  think  he  cannot. 

The  Defendant  took  nothing  by  his  motion. 


BALDWIN  BEOS.  v.  POTTER. 

Supreme  Court  of  Vermont,  1874. 

[46  Vermont,  402.] 

General  assumpsit.     Plea,  the  general   issue,  and  trial  by  the 
court,  September  term,  1873,  Rovce,  J.,  presiding. 

The  case  was  tried  upon  the  following  agreed  statement  of  facts : 
"The  plaintiffs  were  merchants  and  partners,  residing  and  doing 
business  at  St.  All)ans,  Vt.  They  employed  the  defendant  to  solicit 
orders  for  and  sell  an  article  known  and  called  'prize  candy,'  on 
commission.  It  was  the  practice  of  the  parties,  under  said  employ- 
ment, for  the  defendant  to  solicit  and  take  orders  for  said  goods, 


CHAP.    II.]  BALDWIN   BROS.    V.    POTXf^R.  683 

and  send  such  orders  to  the  plaintiffs,  who  would  thereupon  send  the 
candy  to  the  parties  ordering  it,  and  charge  it  directly  to  the  pur- 
chaser, on  the  plaintiffs'  books,  and  for  the  defendant,  when  con- 
venient, to  make  collections  in  respect  thereof  for  the  plaintiffs, 
receipt  therefor,  notify  the  plaintiffs  thereof,  and  pay  the  amounts 
collected,  over  to  the  plaintiffs  on  demand. 

"The  defendant  entered  upon  said  business ;  and  in  Xovember, 
3  870,  and  January,  1871,  he  sent  orders  for  said  candy  for  various 
parties  in  the  state  of  New  York,  to  the  amount  of  $103,  and 
afterwards,  in  August  and  September,  1871,  collected  the  pay  for 
the  same,  as  the  plaintiffs'  agent.  In  November  and  December, 
1870,  and  February  and  March,  1871,  the  defendant  sold,  and  sent 
orders  to  the  plaintiff  from  various  parties  in  the  state  of  Massa- 
chusetts for  said  candy,  to  the  amount  of  $310.52,  and  afterwards, 
in  August  and  October,  1871,  collected  pay  for  the  same  as  the 
plaintiffs'  agent.  During  the  years  1870  and  1871,  the  defendant 
sold  and  sent  orders  for  said  candy  from  various  parties  in  Vermont, 
to  the  amount  of  $215.57,  and  afterwards,  in  August,  September 
and  October,  1871,  collected  the  pay  for  the  same  as  the  plaintiffs' 
agent. 

"On  the  delivery  of  said  goods  by  the  plaintiffs,  they  charged 
the  same  to  the  purchasers,  on  their  books;  and  on  receiving  notice 
from  the  defendant  of  said  collections,  they  credited  to  such  pur- 
chasers the  amounts  thereof.  The  plaintiffs  delivered  to  the  defend- 
ant four  silver  dollars  and  four  silver  half  dollars,  as  samples  of 
the  prizes  contained  in  certain  of  said  prize  candy  packages,  which, 
with  the  premium  thereon,  were  of  the  value  of  $6.72,  and  which 
the  defendant  has  never  returned,  nor  accounted  for,  to  the  plaintiffs. 
It  is  agreed  that  the  commission  to  which  the  defendant  is  entitled, 
is  equal  to,  and  shall  be  set  off  against,  items  in  the  plaintiffs'  favor ; 
specification  not  included  in  the  amounts  aforesaid. 

"Said  prize  candies  were  of  three  kinds,  and  were  known  and 
called  the  'Challenge,'  'Gem,'  and  'United  States  Silver  Coin,'  and 
were  put  up  in  packages  designed  to  be  sold  at  retail  for  a  certain 
price  per  package.*  Each  package,  in  addition  to  a  quantity  of 
candy,  contained  a  prize  of  some  value ;  and  the  inducement  to  pur- 
chase one  or  more  of  the  packages  at  retail,  was  the  chance  of  receiv- 
ing with  the  candy,  a  prize,  some  of  which  were  of  greater  value, 
and  some  of  less  value,  than  the  price  paid.  The  plaintiffs,  at  St. 
Albans,  put  up  said  candy  in  packages,  with  a  prize  in  each  package, 
and  put  up  the  packages  in  boxes  containing  a  certain  number 
thereof.  The  plaintiffs  sold  said  candy  by  the  box  only,  and  each 
box  of  the  several  kinds,  contained  the  same  amount  of  candy,  and 
the  same  prizes,  and  the  prizes  contained  in  each  box  were  printed 
on  the  outside,  and  on  printed  circulars ;  and  cards  were  used  by 
the  plaintiffs,  and  the  defendant  as  their  agent,  in  connection  with 


684  BALDWIN  BROS.  V.    POTTER.  [BOOK  II. 

the  sale  thereof,  stating  particularly  the  kind  and  value  of  each 
article  contained  in  the  box  as  a  prize;  and  each  purchaser  thereof 
from  the  plaintiffs,  was  informed  and  knew  the  amount  of  candy, 
and  the  exact  number,  value,  and  kind  of  articles  as  prizes,  contained 
in  each  box  that  he  bought;  and  the  plaintiffs  knew  that  such  pur- 
chasers intended  to  sell  the  same  at  retail,  in  the  vicinity  of  the  place 
of  purcha'^e,  and  that  the  prizes  would  be  drawn  as  hereinbefore 
stated,  by  the  retail  purchasers  thereof. 

"In  respect  to  said  business,  and  in  the  collection  of  said  money, 
the  defendant  acted  solely  as  the  agent  of  the  phiintiffs.  On  the 
18th  of  October,  1871,  the  plaintiffs^  demanded  of  the  defendant  to 
account  to  them  for  the  money  collected  by  him  as  aforesaid,  and 
said  silver  coins,  and  to  pay  over  the  amount  thereof  to  them,  but 
the  defendant  absolutely  refused,  and  ever  since  hath  refused,  so 
to  do ;  and  has  never  paid  the  same,  nor  any  part  thereof. 

"If  upon  the  foregoing  facts  the  court  is  of  opinion  that  the 
plaintiffs  are  entitled  to  recover  for  the  sums  as  stated,  which  were 
collected  upon  sales  in  the  states  of  New  York,  Massachusetts,  and 
Vermont,  or  either  of  said  states,  or  for  said  silver  coins,  judgment 
shall  be  rendered  for  the  plaintiffs  for  such  sums,  and  interest  fromi 
the  dates  of  collection  of  the  money,  and  the  date  of  the  delivery  of  the 
coin.  If  the  plaintiffs  are  not  entitled  to  recover  in  respect  of  any 
of  said  items,  then  judgment  shall  be  rendered  for  the  defendant  to 
recover  his  costs." 

An  agreement  was  also  made  as  to  some  of  the  provisions  of 
the  statutes  of  New  York  and  Massachusetts  relating  to  offences 
against  public  policy,  in  force  at  the  time  of  said  sales.  The  court 
rendered  judgment  for  the  plaintiff,  pro  forma,  to  recover  the  full 
amount  claimed,  with  interest  thereon  as  stipulated;  and  found  that 
the  defendant  received  said  money  in  a  fiduciary  capacity,  and  con- 
verted the  same  to  his  own  use,  and  adjudged,  pro  forma,  that  the 
cause  of  action  arose  fi'om  (lie  willful  and  malicious  act  and  neglect 
of  the  defendant,  and  that  he  ought  to  be  confined  in  close  jail ;  to 
all  which  the  defendant  excepted. 

The  opiiiidii  of  llu!  court  was  delivered  by  Pierpoint,  Oh.  J. 

We  (jo  not  find  it  necessary  in  this  case  to  consider'  the  question 
as  to  wlietlicr  the  contract  for  the  sale  of  the  property  referred  to, 
%  the  i)hiint ill's,  to  the  several  persons  who  purchased  it,  were 
contracts  made  in  violation  of  law,  and  therefore  void,  or  not.  This 
action  is  not  between  ilie  parties  to  those  contracts;  neither  is  it 
founded  upon,  or  broiigjit  to  enforce  them.  Tf  those  contracts  were 
illegal,  the  law  will  not  aid  either  party  in  respect  to  them;  it  will 
not  allow  the  seller  to  sne  foj-  and  recover  the  price  of  the  property 
sold,  if  it  has  not  been  paid  ;  if  it  has  been  paid,  the  purchaser  cannot 
sue  for  and  recover  it  back.     The  facts  in  this  case  show  that  the 


CHAP.    II.]  BALDWIN    BROS.    V.    POTTER.  685 

purchasers  paid  the  money  to  the  plaintiffs,  not  to  the  plaintiffs 
personally,  but  to  the  defendant  as  the  agent  of  the  plaintiffs,  author- 
ized to  receive  it.  When  the  money  was  so  paid,  it  became  the 
plaintiffs'  money,  and  when  it  was  received  by  the  defendant  as  such 
agent,  the  law,  in  consideration  thereof,  implies  a  promise  on  the 
part  of  the  defendant,  to  pay  it  over  to  his  principals,  the  plaintiffs; 
it  is  this  obligation  that  the  present  action  is  brought  to  enforce :  no 
illegality  attaches  to  this  contract.  But  the  defendant  insists  that, 
inasmuch  as  the  plaintiff  could  not  have  enforced  the  contracts  of 
sale  as  between  himself  and  the  purchaser,  therefore,  as  the  pur- 
chaser has  performed  the  contracts  by  paying  the  money  to  the 
plaintiffs  through  me,  as  their  agent,  I  can  now  set  up  the  ille- 
gality of  the  contract  of  sale  to  defeat  an  action  brought  to  en- 
force a  contract  on  my  part  to  pay  the  money  that  I  as  agent 
receive,  over  to  my  principal.  In  other  words,  because  my  prin- 
cipal did  not  receive  the  money  on  a  legal  contract.  I  am  at  liberty 
to  steal  the  money,  appropriate  it  to  my  own  use,  and  set  my  principal 
at  defiance.  We  think  the  law  is  well  settled  otherwise,  and  the  fact 
that  the  defendant  acted  as  the  agent  of  the  plaintiffs  in  obtaining 
orders  for  the  goods,  does  not  vary  the  case.  Tenant  v.  Elliot, 
1  B.  &  P.  2;  Armstrong  v.  Toller,  11  Wheat.  257;  Evans  v.  City  of 
Trenton,  4  Zab.  (N.  J.)  764. 

We  think  the  certificate  granted  by  the  county  court  was  properly 
granted.  It  has  been  urged  in  behalf  of  the  defendant,  that  the 
zeal  with  which  he  has  defended  this  case  shows  that  he  intended 
no  wrong;  but  we  think  the  man  who  receives  money  in  a  fiduciary 
capacity,  and  refuses  to  pay  it  over,  does  not  improve  his  condition  by 
the  tenacity  with  which  he  holds  on  to  it. 

Judgment  of  the  county  court  affirmed.^ 

'Accord:  Farmer  v.  Russell  (1798)  1  B.  &  P.  296;  Planters'  Bank  v.  Union 
Bank  (1872)  16  Wall.  483,  49a;  Murray  v.  Vanderbilt  (1863)  39  Barb.  140, 
152;  Wilson  v.  Owen  (1874)  30  Mich.  474.  Contra:  Woodson  v.  Hopkins 
(Miss.  1905)  37  So.  1000.  In  Planters'  Bank  v.  Union  Bank,  supra.  Strong, 
J.,  at  p.  409,  explained  the  distinction  drawn  in  the  principal  ease  as  follows: 
'But  when  the  illegal  purpose  had  been  consummated;  .  .  .  when  the  pro- 
ceeds of  the  sale  have  been  actually  received  .  .  .  the  court  is  not  then 
asked  to  enforce  an  illegal  contract  to  establish  their  case.  It  is  enough  that 
the  defendants  have  in  hand  a  thing  of  value  that  does  not  belong  to  them. 
.  .  .  Though  an  illegal  contract  would  not  be  executed,  yet  when  it  has  been 
executed  by  the  parties  themselves,  and  the  illegal  object  of  it  has  been  accom- 
plished, the  money  or  thing  which  was  the  price  of  it  may  be  a  legal  considera- 
tion between  tlie  parties  for  a  promise  express  or  implied,  and  the  court  will 
not  unravel  the  transaction  to  discover  its  origin.' 

The  cases  seem  in  dispute  as.  to  the  right  of  one  partner  to  recover  from 
another  the  proceeds  of  an  illegal  business.  When  the  transaction  is  malum 
in  se,  there  is  no  doubt  that  a  recovery  should  be  refused.  Highwayman's  Case 
(Exchequer  1725),  ante,  666. 


686  HOLLIS   V.   EDWARDS   AND   ANOTHER.  [BOOK  II. 

(c)  The  Contract  is  Unenforceable  under  the  Statute  of  Frauds. 

(1)    The  Defendant  is  in  Default. 

HOLLIS  V.   EDWAKDS  AND  ANOTHEK. 

In  Ceancery,  before  Sir  Francis  North,  L.  K.,  Mat  1,  1683. 

[1  Vernoii,  159.] 

In  these  eases,  bills  were  exhibited  to  have  an  execution  of  parol 
agreements  touching  leases  of  houses,  and  set  forth  that  in  confidence 
of  these  agreements  the  plaintiffs  had  expended  great  sums  of  money 
in  and  about  the  premises,  and  had  laid  the  agreement  to  be  that  it 
was  agreed  the  agreements  should  be  reduced  into  writing.  The 
defendants  pleaded  the  statute  of  frauds  and  perjuries. 

For  the  plaintiffs  it  was  insisted  on  the  saving  in  the  act  of  parlia- 
ment, viz..  Unless  the  agreement  were  to  be  performed  within  the 
space  of  a  year:  but  it  was  answered,  that  clause  did  not  extend  to 

It  would  seem,  however,  that  when  the  completed  transaction  was  merely 
malum  prohibitum,  relief  should  be  had  either  by  an  accounting,  Brooks  v. 
Martin  (1863)  2  Wall.  70  [discredited  by  Mr.  Justice  Peckham  in  Malley 
V.  Hoffman  (1899)  174  U.  S.  039,  GGO]  ;  Sharp  v.  Taylor  (1848)  2  Phill.  801; 
Cook  V.  Sherman  (1882)  20  Fed.  107;  Manchester  &  Lawrence  R.  R.  v.  Con- 
cord R.  R.  (1889)  66  N.  H.  100;  Pfeuffer  v.  Maltby  (1881)  54  Tex.  454; 
or  by  an  action  sounding  in  Quasi-Contra,  Wann  v.  Kelly  (1881)  5  Fed.  584; 
Robison  v.  McCracken  (1892)  52  Fed.  726;  Gilliam  v.  Brown  (1870)  43  Miss. 
641;  McDonald  v.  Lund  (1896)  13  Wash.  412;  contra,  Goodrich  v.  Houghton 
(1892)    134  N.  y.  115. 

In  the  jurisdiction  last  cited,  denying  a  recovery,  the  court  suggests  that 
relief  might  be  given  were  the  partnership  legal  in  its  inception.  See  Wood- 
worth  V.  Bennett  (1871)  43  N.  Y.  273;  or  if  there  had  been  a  formal  account- 
ing, see  Leonard  v.  Poole  (1889)  114  N.  Y.  371.  These  distinctions  seem 
founded  on  the  following  dictum  of  Mellor,  J.,  in  Taylor  v.  Chester  (1869) 
L.  R.  4  Q.  B.  309,  314:  "The  true  test  of  determining  whether  or  not  the  plain- 
tiff was  in  pari  delicto  is  by  considering  whether  the  plaintiff  could  make 
out  his  case,  otherwise  than  through  the  medium  and  by  the  aid  of  the  illegal 
transaction."  The  suggestion  appears  untenable,  as  it  is  the  duty  of  the  court 
to  take  cognizance  of  any  illegality  on  its  own  motion.  Claflin  v.  U.  S.  Credit 
Co.  (1896)  165  Mass.  .501;  Richardson  v.  Buhl  (1889)  77  Mich.  632,  651; 
Wright  V.  Rindskopf  (1877)  43  Wis.  344.  It  is  submitted  that  the  true  reason 
for  allowing  a  recovery  in  this  class  of  cases  is  that  it  is  more  consonant  with 
sound  public  policy  than  to  permit  one  partner,  by  the  plea  of  illegality,  to  ap- 
propriate to  his  own  use  money  which  has  been  given  him  to  turn  over  to  his 
associate.  See  the  opinion  of  Piekkepont,  C.  J.,  in  Baldwin  Bros.  v.  Potter, 
supra. — Ed. 


CHAP.    II.]  HOLLIS   V.   EDWARDS    AND   ANOTHER.  687 

any  agreement  concerning  lands  or  tenements.  Then  it  was  insisted 
for  the  plaintiffs,  that  undoubtedly  they  had  a  clear  equity  to  be 
restored  to  the  consideration  they  had  paid,  and  to  the  money  which 
they  in  confidence  of  the  agreement  had  expended  on  the  premises. 
As  touching  that  matter,  it  was  said  by  the  Lord  Keeper,  that 
there  was  a  difference  to  be  taken,  where  the  money  was  laid  out 
for  necessary  repairs  or  lasting  improvements,  and  where  it  was  laid 
out  for  fancy  or  humor;  and  that  he  thought  clearly  the  bill  would 
hold  so  far,  as  to  be  restored  to  the  consideration:  but  he  said,  the 
difficulty  that  arose  upon  the  act  of  parliament  in  this  case  was,  that 
the  act  makes  void  the  estate,  but  does  not  say  the  agreement  itself 
shall  be  void;^  and  therefore,  though  the  estate  itself  is  void,  yet 
possibly  the  agreement  may  subsist;  so  that  a  man  may  recover 
damages  at  law  for  the  non-performance  of  it ;  and  if  so,  he  should  not 
doubt  to  decree  it  in  equity :  and  therefore  directed,  that  the  plaintiffs 
should  declare  at  law  upon  the  agreement,  and  the  defendants  were 
to  admit  it,  so  as  to  bring  that  point  for  judgment  at  law;  and  then 
he  would  consider  what  was  further  to  be  done  in  this  case.^ 

^"There  are  three  views  taken  by  the  courts  as  to  the  effect  of  a  failure 
to  comply  with  the  statute  of  frauds: 

"1.  That  the  statute  affects  not  the  contract,  but  simply  the  remedy  for  the 
breach  thereof.  Leroux  v.  Brown,  12  C.  B.  801 ;  Kleeman  v.  Collins,  9  Bush. 
460;  Townsend  v.  Hargraves,  118  Mass.  325. 

"2.  That  the  effect  thereof  is  to  make  the  contract  a  nullity.  Wilkinson 
V.  Heavenrich,  58  Mich.  574;  Crawford  v.  Parsons,  18  N.  H.  293;  Koch  v. 
Williams,  82  Wis.  186. 

"3.  That  the  effect  thereof  is  to  enable  either  party  to  rescind  the  contract. 
Winters  v.  Elliott,  1  Lea,  676;  Brakefield  v.  Anderson,  87  Tenn.  206  (semble)." 
Keener's  Treatise,  232. 

As  to  the  meaning  and  interpretation  of  the  statute,  see  also.  Catling  v. 
King  (1877)  5  Ch.  Div.  660;  Rossiter  v.  Miller  (1877)  5  Ch.  Div.  648,  S.  C. 
(1878)  3  App.  Cas.  1124;  Shardlow  v.  Cotterill  (1881)  50  L.  J.  Ch.  613; 
Souch  V.  Strawbridge  (1846)  2  M.  G.  &  S.  808;  Coombs  v.  Wilkes  [1891] 
3  Chan.  77;  Davies  v.  Otty  (1864)  33  Beav.  540;  Shahan  v.  Swan  (1891) 
48  Ohio  St.  25;  Grant  v.  Ramsey  (1857)  7  Ohio  St.  158;  Heaton  v.  Eldridge 
(1897)  56  Ohio  St.  87;  Steel  Works  v.  Atkinson  (1873)  68  111.  421;  Baldwins. 
Palmer  (1851)  10  N.  Y.  232  (one  voluntarily  performing  part  of  a  contract, 
unenforceable  because  of  the  statute,  does  not  thereby  render  himself  liable 
to  a  suit  for  failure  to  perform  the  rest)  ;  Lincoln  v.  Wright  (1859)  4  De  G. 
&  J.  16;   Britain  v.  Rossiter   (1879)    11  Q.  B.  Div.  123.— Ed. 

^See  Hawley  v.  Moody  (1852)  24  Vt.  603.— Ed. 


688  KIXG    I'.    BROWN.  [book   II. 

KING  V.  BROWN. 

Supreme  Court  of  New  York,  1842. 
[2  //(■//.  485.] 

Error  to  the  Chenango  common  pleas.  Brown  sued  King  before  a 
justice  of  the  peace,  and  declared  upon  a  special  agreement  by  which 
the  defendant,  in  consideration  of  $40,  payable  in  work,  agreed  to  con- 
vey to  the  plaintiff  four  acres  of  land;  averring  that  the  work  had 
been  done  and  that  the  defendant  refused  to  convey.  The  declaration 
also  contained  the  common  counts  for  work,  labor,  &c.  The  defend- 
ant pleaded  the  general  issue  and,  after  trial,  the  justice  rendered 
judgment  for  the  plaintiff  for  $100.  The  defendant  appealed  to  the 
C.  P.  On  the  trial  in  that  court  it  appeared  that  the  contract  was 
by  parol — that  soon  after  it  was  made,  the  plaintiff  took  possession  of 
the  land  and  made  improvements  upon  it  by  erecting  a  house  and 
clearing  the  greater  part  of  it,  and  that  a  few  months  before  the 
commencement  of  the  suit  the  defendant  sold  the  premises  to  one 
Hutchinson  for  $100.  Sufficient  evidence  was  given  to  warrant  the 
jury  in  finding  that  the  contract  had  been  fulfilled  on  the  part  of 
the  plaintiff.  The  land,  with  the  improvements,  was  proved  to  be 
worth  from  $100  to  $140;  but  the  evidence  on  that  point  was  objected 
to  by  the  defendant.  The  objection  was  overruled  and  the  defendant 
excepted.  The  court  charged  the  jury  that  if  they  found  the  plain- 
tiff had  fulfilled  the  contract  and  had  gone  into  possession  of  the 
land  by  the  consent  of  the  defendant  who  had  refused  to  perform  the 
agreement  on  his  part,  or  had  put  it  out  of  "his  power  to  perform, 
then  the  plaintiff  was  entitled  to  recover  the  value  of  the  land  at  the 
time  the  defendant  should  have  conveyed  ;  and  that  in  estimating 
the  value  of  the  land  the  improvements  should  be  taken  into  consider- 
ation. The  defendant  excepted  to  the  charge,  and  the  jury  found  a 
verdict  for  the  plaintiff  for  $120.  After  judgment,  the  defendant 
sued  out  a  writ  of  error. 

By  the  Court,  Nelson,  Ch.  J.  It  is  impossible  to  sustain  the  judg- 
ment in  this  case,  however  just  and  meritorious  may  be  the  claim,  to 
the  amount  that  has  been  recovered.  The  contract  for  the  purchase 
of  the  land,  resting  in  parol,  is  void  under  the  statute  of  frauds  and 
cannot  be  the  foundation  of  an  action.  I  am  aware  of  the  intima- 
tion by  WooDWORTH.  J.,  in  Burlingame  v.  Burlingame,  7  Cowen,  92, 
that  the  plaintiff  should  declare  on  the  special  contract;  l)ut  it  is 
against  the  whole  scope  of  the  doctrine  of  the  case  itself,  which  went 
to  show  that  the  plaintiff  must  recover,  if  at  all,  under  the  general 
counts,  on  the  ground  that  the  contract  was  void.  To  hold  it  subsist- 
ing and  valid,  and  the  l)reach  of  it  a  good  foundation  for  an  action 
at  law,  the  same  as  if  in  writing,  would  be  virtually  overruling  the 


CHAP.    II.]  COOK    V.    DOGGETT.  689 

statute  of  frauds  and  confounding  principles  that  have  been  settled 
and  acknowledged  ever  since  its  enactment.  The  true  principle  is 
this :  the  contract  being  void  and  incapable  of  enforcement  in  a  court 
of  law,  the  party  paying  the  money  or  rendering  the  services  in  pur- 
suance thereof,  may  treat  it  as  a  nullity  and  recover  the  money  or 
value  of  the  services  rendered  under  the  common  counts.  This  is  the 
universal  rule  in  cases  where  the  contract  is  void  for  any  cause  not 
illegal,  if  the  defendant  be  in  default. 

In  the  case  before  us,  the  compensation  for  the  work  to  be  done, 
was  fixed  by  the  parties;  and  assuming  that  the  only  remedy  at  law 
is  the  recovery  of  the  value  of  the  services  thus  rendered,  under  the 
general  counts,  it  cannot  exceed  that  amount,  together  with  the  in- 
terest. This  is  the  rule  also,  where  the  contract  is  in  writing  and 
valid  but  has  been  rescinded  by  the  parties;  and  is  the  measure  of 
damages,  moreover,  where  the  vendee  pursues  his  remedy  upon  the 
contract  for  default  of  the  vendor.  Gillet  v.  Maynard,  5  John.  K.  85 ; 
Gary  v.  Hull,  11  id.  441;  Eice  v.  Peet,  15  id.  503;  Baldwin  v.  Munn, 
2  Wend.  399;  Dimmick  v.  Lockwood,  10  id.  142;  Sugd.  on  Vend. 
219,  222. 

It  is  not  important  to  enquire,  whether  a  vendor  who  fraudulently 
refuses  to  perform  the  contract,  and  conveys  to  a  third  person  at  an 
enhanced  price,  might  not  be  held  responsible  for  the  improved  or 
enhanced  value  of  the  land,  in  an  action  brought  upon  the  contract  by 
the  vendee;  because  in  this  case  the  agreement  being  void  and  not 
the  subject  of  an  action  at  law,  even  conceding  the  affirmative  of  the 
question,  the  plaintiff  could  not  bring  himself  within  the  principle. 
In  pursuing  his  remedy  here,  the  contract  must  be  laid  out  of  view, 
as  the  cause  of  action  rests  entirely  upon  the  work  and  labor  done 
under  it,  unaffected  by  any  question  of  damages  that  might  have 
been  involved,  in  case  the  agreement  had  been  valid  and  the  action 
founded  upon  the  breach  of  it. 

Judgment  reversed.^ 


COOK  V.  DOGGETT. 
Supreme  Judicial  Court  of  Massachusetts^  1861. 
[2  Allcfi,  439.] 

Contract  to  recover  back  $100,  paid  by  the  plaintiff  as  a  portion 
of  the  price  of  land,  under  an  oral  contract  for  the  purchase  thereof 
with  the  defendant,  which  the  defendant  afterwards  refused  to  fulfil ; 
and  the  expense  of  cutting  and  gathering  into  the  defendant's  barn 
the  grass  thereon. 

»See  Smith  v.  Smith  (1860)  4  Dutch.  208.— Ed. 


690  COOK   V.   DOGGETT.  [bOOK   II. 

At  the  trial  in  the  superior  court,  the  plaintiff  introduced  evidence 
tending  to  show  that  the  defendant  sold  to  the  plaintiff  a  farm,  with 
certain  personal  property  thereon,  for  $5500,  and  orally  agreed  to  pre- 
pare and  execute  a  deed  thereof,  he  receiving  at  the  time  $100  to  bind 
the  bargain,  and  the  plaintiff  agreeing  to  pay  the  residue  upon  de- 
livery of  the  deed ;  that  afterwards  the  parties  met  for  the  purpose  of 
completing  the  transaction,  and  the  defendant  refused  to  fulfil  his 
contract,  under  circumstances  not  necessary  to  be  stated  here  in  de- 
tail; that  the  plaintiff  was  prepared  to  pay  the  money,  and  the  de- 
fendant knew  it;  and  that  after  the  making  of  the  contract  the  plaintiff 
entered  into  possession  of  the  land,  and  cut  the  grass,  and  put  it  into 
the  defendant's  barn,  and  the  defendant  had  the  benefit  of  it;  but 
there  was  no  evidence  of  any  request  by  the  defendant  for  him  to 
cut  it. 

Metcalf,  J.  An  action  for  money  had  and  received  lies  for  recover- 
ing back  money  paid  by  a  party  to  an  agreement  which  is  invalid  by 
the  statute  of  frauds,  and  which  the  other  party  refuses  to  perform. 
Gillet  V.  Maynard,  5  Johns.  85.  Browne  on  St.  of  Frauds,  §  122. 
This  is  not  denied  by  the  defendant ;  but  he  contends  that  this  action 
cannot  be  maintained,  because  the  plaintiff  did  not  tender  to  him  the 
rest  of  the  money  which,  by  the  terms  of  their  oral  agreement,  he  was 
to  receive  for  performance  of  his  part  of  that  agreement. 

It  is  very  clear,  on  the  authorities,  that  the  judge,  at  the  trial,  cor- 
rectly instructed  the  jury  that  if  the  defendant  refused  to  perform  his 
part  of  the  contract,  the  plaintiff  could  maintain  this  action  by  show- 
ing that  he  was  ready  to  perform  on  his  part,  without  show- 
ing that  he  made  a  tender.  According  to  the  contract,  concurrent 
acts  were  to  be  done  by  the  parties ;  the  defendant  to  execute  a  deed, 
and  the  plaintiff  to  pay  money.  In  such  a  case,  when  one  party  re- 
fuses to  do  what  he  had  engaged  to  do,  the  other  party  need  not  do, 
nor  formally  offer  to  do,  what  he  had  engaged  to  do;  readiness  to  do 
it  being  all  that  he  needs  to  allege  or  prove.  1  Saund.  320  e,  note  5; 
Adams  v.  Clark,  9  Cush.  215,  &  cases  there  cited;  Rawson  v.  Johnson, 
1  East,  203;  Waterhouse  v.  Skinner,  2  B.  &  P.  447;  Jackson  v. 
Allaway,  7  Scott,  X.  S.  875,  and  1  Dowl.  &  Lowndes,  919;  Boyd  v. 
Lett,  1  C.  B.  222;  Smith  v.  Lewis,  26  Conn.  110.  In  the  last  case. 
Chief  Justice  Storrs  said  :  "Some  misapprehension  or  confusion  ap- 
pears to  have  arisen  from  the  mode  of  expression  used  in  the  books 
in  treating  of  the  necessity  of  a  tender  or  offer  by  the  parties,  as  ap- 
plicable to  the  case  of  mutual  and  concurrent  promises.  The  word 
'tender,'  as  used  in  such  a  connection,  does  not  mean  the  same  kind 
of  offer  as  when  it  is  used  with  reference  to  the  payment  or  offer  to 
pay  an  ordinary  debt  due  in  money,  where  the  money  is  offered  to  a 
creditor  who  is  entitled  to  receive  it  and  nothing  further  remains  to 
be  done,  but  the  transaction  is  completed  and  ended  ;  but  it  only  means 
a  readiness  and  willingness,  accompanied  with  an  ability,  on  the  part 


CHAP.    II.]  JELLISON    V.    JORDAN.  691 

of  one  of  the  parties,  to  do  the  acts  which  the  agreement  requires  him 
to  perform,  provided  the  other  will  concurrently  do  the  things  which 
he  is  required  by  it  to  do,  and  a  notice  by  the  former  to  the  latter 
of  such  readiness.  Such  readiness,  ability  and  notice  are  sufficient 
evidence  of,  and  indeed  constitute  and  imply  an  offer  or  tender  in 
the  sense  in  which  those  terms  are  used  in  reference  to  the  kind  of 
agreements  which  we  are  now  considering."  These  remarks  are  ap- 
plicable to  some  of  the  cases  which  were  cited  by  the  defendant's  coun- 
sel. 

The  judge  also  correctly  instructed  the  jury  that  the  plaintiff  could 
not  recover  for  the  expenses  of  cutting  the  hay,  as  it  was  not  cut  at 
the  defendant's  request.  There  was  no  express  or  implied  undertaking 
by  the  defendant  to  pay  for  cutting  the  hay;  the  work  was  done,  or 
caused  to  be  done,  by  the  plaintiff,  for  his  own  benefit,  on  the  faith 
that  the  defendant  would  convey  the  land  agreeably  to  his  oral  en- 
gagement, which  the  plaintiff  must  be  supposed  to  have  known  he 
could  not  by  law  enforce.  Gillet  v.  Maynard,  5  Johns.  85 ;  Shreve  v. 
Grimes,  4  Littell,  220,  224;  Welsh  v.  Welsh,  5  Ohio,  267;  BroArae  on 
St.  of  Frauds,  §  119. 

Exceptions  of  both  parties  overruled.^ 


JeUison  v.  Jordan  (1878),  68  Me.  373.  On  exceptions,  by  the 
defendant,  to  instructions  stated  in  the  opinion.  Appleton,  C.  J. 
This  was  an  action  on  an  account  annexed  and  for  money  had  and  re- 
ceived. 

It  was  in  evidence,  that  the  defendant  bargained  with  the  plain- 
tiff to  sell  him  a  small  farm  for  a  sum  of  money  down  and  the  bal- 
ance on  time,  the  defendant  to  give  a  warranty  deed  and  to  receive 

^See  also,  Nelson  v.  Shelby  Mfg.  Co.  (1892)  96  Ala.  515;  Bedell  v.  Tracy 
(1892)  65  Vt.  494;  Stevens  v.  Van  Ness  (1892)  19  N.  Y.  Supp.  950;  Buck  v. 
Waddle  &  McGarraugh  (1824)  1  Ohio,  357;  Morgan  v.  Bitzenberger  (1845) 
3  Gill,  351;  Pulbrook  v.  Lawes  (1876)  1  Q.  B.  Div.  284.  Equity  has  followed 
the  same  rule,  decreeing  a  recovery  of  the  consideration.  Harrison  v.  Belcher 
(1680)  Freeman.  484;  Leak  v.  Morris  (1680)  1  Dick.  14,  S.  C.  (1682)  2  Ch. 
Cas.  135;  Anonymous,  2  Eq.  Cas.  Ab.  46,  p.  12. 

A  recovery  is  also  permitted  against  one  who  by  arrangement  between  the 
parties  has  taken  the  legal  title  under  an  oral  promise  to  convey  later  to 
the  plaintiff,  and  has  failed  so  to  do,  Stinchfiold  r.  Milliken  (1880)  71  Me. 
567;  Leman  v.  Whitley  (1828)  4  Russ.  423;  Davis  v.  Whitehead  [1894] 
2  Ch.  133;  Campbell  v.  Dearborn  (1872)  109  Mass.  130,  or  where  he  fails  to 
perform  some  act  promised.  Giffen  v.  Taylor  (1894)  139  Ind.  573.  As  to 
the  question  who  must  bring  action  in  such  cases,  see  McGovern  v.  Hern 
(1891)    153  Mass.  308.— Ed. 


G92  JELLISOX  V.    JORDAN.  [BOOK  II. 

from  the  plaintiff  his  notes  for  the  balance  of  the  purchase  money  se- 
cured by  mortgage.  The  plaintiff  went  into  immediate  possession  of 
the  premises  and  has  ever  since  remained  there.  The  plaintiff  made 
the  cash  payment  and  gave  the  notes  and  mortgage.  The  defendant 
was  to  get  his  wife  to  sign  the  deed  and  then  deliver  the  same  to 
the  plaintiff.  The  plaintiff  went  on ;  paid  a  portion  of  the  notes  under 
an  expectation  that  he  should  have  his  deed,  which  tlie  defendant  re- 
peatedly promised  to  give  him.  Finally,  the  plaintiff*  denumded  his 
deed  which  the  defendant  refused  to  deliver,  and  commenced  the  proc- 
ess of  forcible  entry  and  detainer,  which  is  now  pending.  There- 
upon the  plaintiff,  on  account  of  such  refusal  and  the  previous  re- 
fusal and  neglect  of  the  defendant  to  deliver  a  deed,  brought  this 
action  to  recover  back  what  he  had  paid. 

The  instruction  to  the  jury  was  that  the  action  might  be  main- 
tained, notwithstanding  the  plaintiff  had  not  surrendered  the  posses- 
sion of  the  premises,  and  although  the  notes  were  not  fully  paid  when 
the  action  was  commenced. 

The  plaintiff  has  done  as  he  agreed.  He  is  in  the  right.  The 
defendant  has  refused  to  perform  his  contract.  He  is  in  the  wrong. 
The  contract  between  the  parties  related  to  real  estate  and  is  within 
the  statute  of  frauds.  The  plaintiff  cannot  enforce  its  performance. 
The  defendant  had  the  election  to  perform  it  or  not.  The  plaintiff 
had  no  such  election.  He  could  not  rescind  the  contract,  if  he  would, 
if  the  defendant  was  willing  to  perform.  Kneeland  r.  Fuller,  51 
Maine,  518,  519;  Plummer  v.  Bucknam,  55  Maine,  105. 

The  defendant,  having  alone  the  option  to  perform  or  not,  has 
elected  not  to  perform  his  contract.  It  then  has  no  validity  as  a  con- 
tract. The  defendant  has  the  money  of  the  plaintiff  in  his  hands  in 
part  performance  of  a  contract  which  he  has  voluntarily  repudiated. 
It  is  well  settled  that  an  action  for  money  had  and  received  lies  to  re- 
cover back  money  paid  by  a  party  to  an  agreement  invalid  by  the 
statute  of  frauds,  which  tlic  other  party  refuses  to  perform.  Cook  v. 
Doggett,  2  Allen,  439. 

The  fact  that  the  plaintiff  is  in  possession  of  tlie  prcMiiises  to  1)0 
conveyed  affords  no  dcfi'nsc  to  his  claim.  In  Hichanls  r.  Allen, 
17  Maine,  290,  the  plaintiff  had  been  in  possession,  eighteen  or  twenty 
years,  of  the  farm  the  defendant  had  promised,  under  circumstances 
like  tho.se  in  the  present  case,  to  convey;  but  tlie  action  was  neverthe- 
less maintained.  If  the  possession  of  the  plaint  ill'  was  rightful  it 
can  furnish  no  defense  to  the  defendant,  especially  when  the  defend- 
ant has  b(!en  allowed  for  tlu;  use  of  the  premises  from  the  time  of  the 
plaintiff's  entry  thereon  to  tlie  date  of  tlic  wiit,  as  in  Uicbards  v. 
Allen. 

If  the  plaintiff's  po.s.session  was  wrongful,  Iiis  wrong  doing  can  fur- 
nish no  defense  for  the  wrong  doing  of  the  di^fendant.  The  plaintiff  is 
entitled  to  compensation  from  the  defendant.     If  he  has  violated  any 


CHAP.    II.]  KNOWLMAN    V.    BLUETT.  693 

rights  of  the  defendant,  he  is  amenable  to  the  law  for  such  violation 
in  a  suit  therefor. 

Exceptions  overruled. 
Walton,   Barrows,  Dan  forth,  Peters  and  Libbey,  J  J.,  con- 
curred. 


KNOWLMAN  v.  BLUETT. 

In  the  Exchequer  Chamber,  June  13,  1874. 

[Law  Reports,  9  Exchequer,  307.] 

Appeal  by  the  defendant  from  a  decision  of  the  Court  of  Exchequer 
refusing  a  rule  to  enter  a  nonsuit.    L.  E.  9  Ex.  1. 

The  defendant,  who  was  the  father  of  seven  illegitimate  children 
of  the  plaintiff,  agreed  with  her  verball}^  to  pa}^  her  £300  per  annum, 
by  equal  quarterly  instalments,  for  so  long  as  she  should  maintain 
and  educate  the  children.  At  the  time  of  the  making  of  the  promise 
the  eldest  child  was  about  fourteen  years  old.  For  several  years  the 
plaintiff  maintained  and  educated  the  children,  and  the  defendant 
paid  the  agreed  sums.  At  Michaelmas,  1870,  he  discontinued  his 
payments.  The  plaintiff  continued  to  maintain  and  educate  the 
children,  and  in  May,  1873,  brought  an  action  for  two  and  a  half 
years'  arrears.^ 

Blackburn,  J.  We  are  of  opinion  that  the  Court  of  Exchequer 
was  right  in  refusing  a  rule  in  this  case.  The  bargain  between  the 
parties  was  that  if  the  plaintiff  would  take  care  of  and  maintain  the 
children,  the  defendant  would  pay  her  £300  a  year  as  long  as  she 
did  so.  This  arrangement  was  never  revoked,  and  the  plaintiff  having 
taken  care  of  and  maintained  the  children,  now  sues  for  arrears  due 
to  her.  It  is  said  that  the  action  is  not  maintainable  because  there 
is  no  memorandum  in  writing  of  the  bargain.  But  the  plaintiff  has 
performed  her  part  of  it,  and  it  would  be  unjust  if  she  could  not 
obtain  repayment  of  the  sums  she  has  expended.  She  could  have 
maintained  an  action  for  "money  paid  at  the  defendant's  request," 
and  it  would  have  been  no  answer  to  have  said  that  the  term  in  respect 
of  which  she  was  suing  was  longer  than  a  year,  and  that  the  agree- 
ment which  fixed  the  rate  of  remuneration  was  one  not  to  be  per- 
formed within  a  year.  We  think  that  in  substance  her  present  claim 
is  for  money  paid,  although  the  declaration  is  in  form  upon  a  special 
contract. 

Keating,  Mellor,  Lush,  Grove,  and  Archibald,  JJ.,  concurred. 

Judgment  affirmed. 

^This  statement  of  facts  is  taken  from  the  head  notes. — Ed. 


G9-i  LA    Dr-KIN'G    MAXUFACTURING    CO.    I'.    LA    DU.  [BOOK    11. 

La  Du-King  Manufacturing  Co.  v.  La  Du  (1887),  3G  Mipn.  473. 
The  plaintiff  and  defendant  entered  into  a  parol  contract  by  the 
terms  of  which  the  defendant  was  to  serve  the  company  in  the  capacity 
of  treasurer  for  the  term  of  five  years  for  a  certain  percentage  of  the 
profits.  Defendant  thereupon  entered  upon  such  service,  and  con- 
tinued therein  under  such  service  for  upwards  of  two  years,  when 
he  left  the  same  on  account  of  sickness.  During  the  time  he  was 
working,  he  retained  from  funds  that  came  into  liis  hands,  a  certain 
amount  for  his  services.  For  this  the  plaintiff  sued.  Vandeuburgh, 
J.,  in  the  course  of  his  opinion  said:  "We  are  required  to  further 
consider  the  case  as  left  by  the  findings  of  the  referee.  Could  the 
defendant  maintain  an  action  for  a  quantum  meruit,  upon  the  case 
as  presented,  the  plaintiff  not  being  in  default,  but  ready  and  willing 
to  abide  by  the  contract  as  made? 

In  King  v.  Welcome,  5  Gray,  41,  the  plaintiff  rendered  service  for 
the  defendant  under  a  special  parol  contract  for  a  term  longer  than 
one  year,  but  left  the  service  before  the  year  expired.  The  defendant 
insisted  upon  a  fulfilment  of  the  contract,  but  it  was  held  that  the 
plaintiff  might  recover  for  the  value  of  his  services,  irrespective  of  the 
contract,  which  Avas  not  available  as  a  defence  under  the  statute  of 
frauds.  Substantially  the  same  rule  was  adopted  in  Shutc  v.  Dorr, 
5  Wend.  204,  and  in  Comes  v.  Lamson,  16  Conn.  246.  This  strict 
rule  is,  however,  regarded  as  harsh  and  inequitable  by  other  courts 
and  by  text- writers,  who  find  it  difficult  to  be  reconciled  in  principle 
with  the  doctrine  generally  recognized  in  the  case  of  ])arol  contracts 
to  sell  land,  that  money  paid  by  the  purchaser  cannot  be  recovered  if 
the  vendor  stands  ready  to  fulfil  the  contract  on  his  part.  Coughlin 
V.  Knowles,  7  Met.  57;  39  Am.  Dec.  759;  Collier  v.  Coates,  17  Barb. 
4.71;  Abbott  v.  Draper,  4  Denio,  51;  Browne,  St.  Frauds  (4th  Ed.) 
§122a.  See  1  Smith,  Lead.  Cas.  (8th  Ed.)  632;  2  Chit.  Cont.  (llth 
Ed.)  852,  and  notes;  2  Wait,  Law  &  Pr.  (5th  Ed.)  390.  The  prin- 
ciple that  the  right  to  recover  in  such  cases  dejionrls  upon  the  ques- 
tion of  the  defendant's  default  was  recognized  l)y  this  court  in  John- 
son V.  Krassin,  25  Minn.  117,  and  Sennett  v.  Sliehan.  27  Minn.  328; 
7  N".  W.  Rep.  266.  And  the  doctrine  is  nowhere  denied.  Collier  v. 
Coates,  supra. 

Tn  Calvin  v.  Prentice,  45  N.  Y.  162,  the  court  lay  down  the  broad 
rule  that,  where  services  are  rendered  under  an  agreement  within  the 
statute  of  frauds  because  not  evidenced  by  writing,  no  action  can  be 
maintained  to  recover  their  value  except  upon  the  default  of  the  other 
party,  or  his  refusal  to  go  on  with  the  contract.  The  eontraot  was 
not  illegal,  and  it  was  still  in  foree,  though  no  action  conld  !)(>  main- 
tained on  it.  One  party  cannot,  therefore,  declare  it  rescinded  at  his 
will,  without  cause,  and  proceed  as  upon  an  implird  assumpsit  against 
the  other  part^  to  it,  while  he  stands  ready  to  fulfil  it  according 
to  its  terms.     Abbott  v.   Inskip,  29   Ohio  St.  59;   Erben  v.  Loril- 


CHAP.    II.]  .A    DU-KING    MANUFACTURING    CO.    V.    LA   DU.  695 

lard,  19  N.  Y.  299,  304;  Britain  v.  Eossiter,  11  Q.  B.  Div.  123; 
Van  Valkenburg  v.  Croffut,  15  Hun,  147,  152;  Whiting  v.  Sullivan, 
7  Mass.  107. 

The  objection  suggested  to  the  adoption  of  the  rule  is  that  urged 
very  pointedly  in  King  v.  Welcome,  supra,  viz.,  that  it  enables  the 
defendant  practically  to  enforce  or  avail  himself  of  the  express  con- 
tract, in  violation  of  the  spirit,  if  not  the  letter,  of  the  statute,  to 
defeat  plaintiff's  action  upon  implied  contract.  But,  as  before  sug- 
gested, where  is  the  distinction  in  principle  between  Galvin  v. 
Prentice  and  Abbott  v.  Draper,  supra,  the  doctrine  of  the  latter  case 
(in  relation  to  parol  land  contracts)  being  universally  recognized? 
Collier  v.  Coates,  supra;  Browne,  St.  Frauds,  §122a. 

We  do  not  deem  it  necessary  in  this  case  to  determine  between  the 
rule  laid  down  in  King  v.  Welcome  and  Galvin  v.  Prentice,  or  whether 
the  rule  would  have  been  different  if  defendant  had  left  plaintiff's 
service  without  cause.  It  is  found  that  defendant  left  plaintiff's  ser- 
vice for  good  cause,  on  account  of  sickness.  In  such  case  the  servant 
is  entitled  to  his  pro  rata  wages,  or  the  value  of  his  services,  not 
exceeding  the  compensation  fixed  by  the  agreement  under  which  the 
service  was  rendered.  Clark  v.  Gilbert,  26  N.  Y.  279 ;  84  Am.  Dec. 
189;  2  Chit.  Cont.  851;  Wolfe  v.  Howes,  20  N.  Y.  197,  203; 
75  Am.  Dec.  388;  Clark  v.  Terry,  25  Conn.  395;  Eyan  v.  Day- 
ion,  id.  188;  65  Am.  Dec.  56o";  Philbrook  v.  Belknap,  6  Yt. 
383;  Seymour  v.  Cagger,  13  Hun,  32;  Fuller  v.  Brown,  11 
Met.  440. 

In  Clark  v.  Terry,  the  earlier  case  of  Comes  v.  Lamson,  supra,  was 
explained  and  greatly  limited,  and  the  court  say :  "In  respect  to  the 
question  whether  wages  have  been  earned  which  ought  to  be  paid, 
and  if  so  to  what  extent  or  amount,  and  when  the  payment  ought  to 
be  made,  it  appears  to  us  that  all  the  circumstances  under  which 
they  are  claimed  to  have  been  earned,  including  the  contract  under 
which  the  service  was  performed,  although  it  may  be  one  that  can- 
not be  enforced  by  any  action  directly  upon  it,  may  and  ought  to  be 
considered." 

This  rule  we  think  applicable  in  the  case  at  bar.  There  are  some 
exceptions  to  it,  but  they  are  not  important  to  be  here  considered. 
The  principle  upon  which  a  recovery  is  permitted  in  such  cases  is 
that  the  employer  shall  do  what  his  duty  or  justice  requires,  and  this 
cannot  be  fully  discovered  upon  any  other  theory  than  above  sug- 
gested. The  referee  ruled  correctly  that  in  this  case  the  defendant's 
compensation  must  be  limited  1)y  the  contract;  and.  as  no  profits 
were  found  to  have  been  yet  realized,  it  did  not  appear  that  he  was 
entitled  to  any  counterclaim  against  the  money  of  plaintiff  in 
his  hands.  Plaintiff  is  therefore  entitled  to  judgment  for  the 
amount  claimed,  and  the  defendant  is  remitted  to  his  remedy 
by   action   for   any   proportion   of   the   earnings   or   profits   of   the 


696  KOCH    V.    WILLIAMS.  [BOOK   II. 

company  he  may  eventually  be  found  entitled  to.     Clark  v.   Gil- 
bert, supra. 

Order  affirmed.^ 


Koch  V.  Williams  (1892),  82  Wis.  186.  The  plaintiffs  and  defend- 
ants mutually  agreed  that  the  plaintiffs,  architects,  should  draw  plans 
for  and  superintend  the  erection  of  buildings  for  the  defendants,  and 
the  defendants  should  give  as  compensation  therefor  certain  real 
estate.  The  work  was  finished  to  the  satisfaction  of  defendants,  but 
the  plaintiffs  refused  to  accept  the  real  estate  bargained  for,  and  sued 
for  the  reasonable  value  of  their  services.  Orton,  J.,  speaking  for 
the  court,  said :  The  contract  the  parties  made  was  oral,  and  that, 
by  our  statute     *     *     *     jg  absolutely  void  and  a  nullity. 

First,  then,  we  are  compelled  to  hold  this  contract  void.  In  de- 
fense of  this  action  the  defendants  set  up  and  seek  to  enforce  this  oral 
contract  for  the  sale  of  the  lot  as  payment  for  the  services  of  the 
plaintiffs.  The  English  statute  29  Car.  II.,  and  the  statutes  of  many 
of  our  states  copied  from  it,  do  not  make  the  contract  void,  but  only 
voidable.  The  authorities  cited  by  the  learned  counsel  of  the  ap- 
pellants are  under  that  statute.  Under  a  statute  like  ours,  the  author- 
ities uniformly  hold  that  such  a  contract  is  void,  and  that  nothing  will 
take  it  out  of  the  statute  except  such  part  performance  on  the  part 
of  the  purchaser,  by  entering  into  the  possession  of  the  premises,  as 
would  render  him  a  trespasser  if  the  agreement  is  held  void,  and 
even  in  such  a  case  the  relief  can  be  souglit  only  in  a  court  of  equity. 
In  Cameron  v.  Austin,  65  Wis.  652,  this  principle  is  applied,  where 
the  plaintiff,  who  had  sued,  as  here,  for  his  services  that  were  to  be 

'Accord:  Crawford  v.  Parsons   (1846)   18  N.  H.  293. 

Where  a  plaintiff  received  for  a  time  an  agreed  amount  for  services  on  a 
contract,  void  by  the  statute,  and  then  was  discharged  before  the  time  stipu- 
lated by  the  void  contract,  a  recovery  on  quantum  meruit  for  a  greater  sum 
than  received  was  denied.  Cohen  v.  Stein  (1884)  61  Wis.  508;  and  see,  Deyo 
V.  Ferris   (188G)    22  111.  Ap.   154. 

Of  course  a  recovery  should  be  permitted  if  the  defendant  prevents  the 
plaintiff  from  completing  the  contract.  Frazer  v.  Howe  (1883)  106  111.  563; 
Littell  V.  Jones  (1892)  .')6  Ark.  139:  Reed  v.  AlcConnell  (1892)  133  N.  Y.  425; 
or  if  the  part  performance  has  been  accepted.  Baker  Bros.  &  Co.  v.  Lauter- 
bach  (1HH7)  M  Md.  64;  Ray  v.  Young  (18.55)  13  Tex.  550  (a  recovery  per- 
mitted against  the  estate  of  one  accepting)  ;  Aiken  v.  Noglc  (1891)  47  Kan. 
96;  Oray  r.  Hill  (1826)  Ryan  &  Moody,  420;  Savage  v.  Canning  (1867) 
1   Iri.sh,  C.  L.  434. 

And  see  as  to  the  rule  in  cquily  in  such  cases,  Buckingham  v.  Ludlum 
(1883)   37  N.  J.  Eq.  137. 

Although  a  contract  is  void  under  the  statute,  it  may  be  shown  to  rebut 
the  presumption  of  a  mere  gratuity  between  near  relatives.  Kcttry  v.  Thumma 
(1894)  36  N.  E.  919.— Ed. 


CHAP.  11.]  KOCH    V.    WILLIAMS.  697 

paid  for  by  a  conveyance  of  land,  had  gone  into  possession  and  made 
improvements  on  the  land,  to  defeat  the  action.  Without  such  part 
performance  by  the  purchaser,  the  contract  was  held  void.  In  the 
late  case  of  Popp  v.  Swanke,  68  Wis.  364,  the  oral  contract  was  to  sell 
and  convey  a  tract  of  land  in  payment  for  lumber.  The  action  was 
for  specific  performance  of  the  contract  by  the  defendant,  upon  full 
performance  by  the  plaintiff  by  the  delivery  of  the  lumber.  The  de- 
fendant and  his  wife  executed  a  deed  to  the  plaintiff,  and  left  it  in 
the  hands  of  a  third  person  in  escrow,  to  be  delivered  to  the  plaintiff 
on  the  delivery  of  the  lumber,  and,  after  receiving  the  lumber,  the 
defendant  refused  to  permit  such  third  person  to  deliver  the  deed. 
This  was  going  a  great  way  towards  a  full  performance  by  both  par- 
ties, and  yet  this  court  held  that  the  contract  was  void  by  our  statute 
and  could  not  be  enforced,  and  that  nothing  less  than  possession  by 
the  purchaser  could  take  the  contract  out  of  the  statute.  Chief 
Justice  Cole  very  clearly  distinguished  our  statute  from  the 
English  statute,  citing  and  following  the  able  opinion  of  Chief 
Justice  Dixon  in  Brandeis  v.  Neustadtl,  13  Wis.  142,  and  the 
other  cases  in  this  court.  See,  also.  Smith  v.  Finch,  8  Wis. 
245;  Blanchard  v.  McDougal,  6  Wis.  167;  Madigan  v.  Walsh, 
22  Wis.  501;  Thomas  v.  Sowards,  25  Wis.  631;  Campbell  v.  Thomas, 
42  Wis.  439. 

Second.  The  plaintiffs,  having  rendered  valuable  services  to  the 
defendants  under  this  void  contract,  are  entitled  to  recover  what  such 
services  were  reasonably  worth.  This,  at  first  blush,  might  appear  to 
be  a  hardship  on  the  defendants,  who  never  agreed  to  pay  for  such 
services  in  money,  and  have  offered  to  pay  according  to  the  oral  con- 
tract by  a  conveyance  of  the  lot.  But  it  is  inevitable,  from  hold- 
ing the  contract  void.  The  statute  must  be  complied  with  as  long 
as  it  is  in  force.  It  is  no  hardship  to  put  such  a  contract  in  writing, 
and  if  parties  suffer  by  not  complying  with  the  statute  it  is  a  pen- 
alty due  to  their  own  negligence,  and  they  have  no  reason  to  com- 
plain. As  said  by  the  late  Justice  Taylor,  in  Salb.  v.  Campbell, 
65  Wis.  405 :  "The  statute  making  the  parol  contract  absolutely  void, 
it  furnishes  no  ground  of  action  in  favor  of  the  plaintiff,  nor  can 
it  be  used  by  the  defendants  as  a  basis  upon  which  to  found  a  de- 
fense. The  parties  stand  in  the  same  relation  to  each  other  as  though 
no  express  contract  existed  between  them,  .  .  .  and  the  plaintiff 
may  recover  upon  a  quantum  meruit  for  the  work  done  upon  an  im- 
plied promise  of  the  defendants  to  pay  what  the  services  are  reason- 
ably worth"  In  Cohen  v.  Stein.  61* Wis.  508,  Chief  Justice  Cole 
said:  "Under  the  decisions  of  this  court  there  can  be  no  doubt  as 
to  the  correctness  of  the  proposition  that,  where  a  person  renders  ser- 
vices under  a  contract  which  is  void,  he  can  recover  upon  a  quantum 
meruit  the  value  of  such  services."  See,  also,  Brandeis  i'.  Neustadtl, 
13  Wis.  142:  Thomas  r.  Sowards,  25  Wis.  631;  X.  W.  U.  Packet  Co. 


698  DAY    V.    XEW    YORK    CEXTRAL    E.  R.    CO.  [BOOK    IL 

V.  Shaw,  37  Wis.  655;  Clark  v.  Davidson,  53  Wis.  317;  Thomas  v. 
Hatch,  53  Wis.  29G. 

The  finding  of  the  court  as  to  the  services  of  the  plaintiffs  and 
value  thereof  appears  to  be  sustained  by  the  testimony.  The  other 
exceptions  of  the  appellants  are  not  material  to  the  merits  of  the  case. 

By  the  Court.    The  judgment  of  the  circuit  court  is  affirmed. 


DAY,  RESPOXDEXT  v.   THE  NEW  YOEK  CENTRAL  RAIL- 
ROAD COMPANY,  APPELLANT. 

Commission  of  Appeals  of  New  York,  1873. 

[51  New  York,  583.] 

Appeal  from  judgment  of  the  General  Term  of  the  Supreme  Court 
in  the  eighth  judicial  district,  affirming  a  judgment  in  favor  of  the 
plaintiff,  entered  upon  a  verdict. 

The  complaint  contained  two  causes  of  action ;  and  for  the  first  cause 
alleged  in  substance  that  in  May,  1855,  the  plaintiff  agreed  to  convey 
to  the  defendant  about  an  acre  and  two-thirds  of  an  acre  of  land, 
together  with  the  right  of  ingress  and  egress,  to  and  from  the  land 
so  to  be  conveyed,  to  the  plaintiff's  land,  and  to  build  and  keep  in 
repair  cattle  yards  and  pens  for  live  stock,  sufficient  to  accommodate 
the  shipping  or  transporting  such  stock  to  and  from  the  cars  to  the 
plaintiff's  land,  adjoining  the  land  so  to  be  convcA^ed,  free  from  any 
expense  to  the  defendant ;  and  that  the  defendant  should  temjiorarily 
deliver  to  the  plaintiff,  from  that  time  forward,  for  temporarily  keep- 
ing and  feeding,  all  the  cattle,  swine  and  live  stock  which  should  be 
transported  on  its  road  eastward  from  the  Niagara  River,  the  profits 
of  such  keeping  and  feeding  to  be  realized  by  the  plaintiff;  that  the 
defendant,  for  that  purpose,  requested  the  plaintiff  to  build,  make, 
and  construct  the  necessary  yards,  pens,  and  so  forth,  for  tlie  tempo- 
rary feeding  and  keeping  suoli  live  stock;  that  a  conveyance  of  the 
land  was  made  by  the  plaintiff  to  the  defendant,  and  the  necessary 
yards,  pens,  and  other  conveniences  for  doing  business,  contemplated 
by  the  agreement,  were  constructed  by  the  plaintiff;  that  the  defend- 
ant disregarded  the  agreement  entered  into  on  its  part,  and  refused  to 
allow  the  live  stock  transported  on  its  road  to  be  delivered  temj)orarily 
to  the  plaintiff  for  feeding  and  keeping,  and  refused  to  allow  the 
plaintiff  the  enjoyment  of  the  profits  he  would  have  realized  by  keeping 
and  feeding  such  stock. 

The  second  cause  of  action  was  an  indebitatus  assumpsit  for  land 
sold  and  conveyed,  for  a  right  of  way  for  use  and  occupation  of  land 
and  premises,  for  work  and  labor,  care  and  diligence,  and  for  materials 
furnished,  and  for  construction  of  cattle  yards,  etc.,  for  the  defendant. 


CHAP.    II.]  DAY   V.    NEW    YORK    CENTRAL    R.  R.    CO.  699 

The  answer  was  a  general  denial. 

The  first  cause  of  action  only  was  contained  in  the  original  com- 
plaint, and  the  action  was  tried  on  that  issue  in  Xovember,  1858,  and 
a  verdict  rendered  for  the  plaintiff  for  $-lr,384:.  On  appeal  to  the 
General  Term,  a  new  trial  was  ordered,  on  the  ground  that  the  agree- 
ment on  the  part  of  the  appellant,  being  verbal  only,  was  void  by  the 
statute  of  frauds,  for  the  reason  that  it  was  not  to  be  performed  within 
one  year,  and  also  that  it  created  a  negative  easement  on  the  lands 
of  the  plaintiff.     5  Johns.  85. 

The  plaintiff  then  amended  his  complaint,  adding  thereto  the  second 
count,  and  a  second  trial  was  afterward  had,  and  a  verdict  recovered 
by  the  plaintiff  in  1867  for  $2,500.  On  a  second  appeal  to  the  Gen- 
eral Term,  a  new  trial  was  ordered  on  the  ground  that  the  damages 
should  have  been  confined  to  the  value  of  the  land  conveyed  by  the 
plaintiff.    2  Hill,  439. 

On  the  third  and  last  trial,  damages  were  recovered  only  for  the 
actual  value  of  the  land  conveyed  by  plaintiff  to  the  defendant,  with 
the  interest. 

Earl,  C.  The  point  was  not  taken  by  the  defendant  at  any  stage 
of  the  trial,  that  the  plaintiff  had  not  given  sufficient  proof  tending 
to  establish  the  parol  agreement  claimed  by  him,  to  wit :  That  in  con- 
sideration of  the  conveyance  of  the  land  to  the  defendant,  it  was 
to  give  to  the  plaintiff  at  his  yards  and  pens  the  business  of  tempo- 
rarily keeping  and  feeding  all  the  stock  which  should  be  transported 
upon  its  road  eastward  from  Xiagara  Eiver.  Hence  we  must  assume, 
for  the  purposes  of  the  appeal,  that  the  parol  agreement,  as  testified 
to  by  the  plaintiff,  was  established.  We  must  also  assume  that  this 
agreement  was  void  under  the  statute  of  frauds,  for  such  is  the  claim 
on  the  part  of  the  defendant,  and  it  was  upon  this  theory  alone  that 
the  recovery  was  based,  and  upon  it  alone  the  plaintiff  seeks  to  uphold 
the  judgment.  As  the  consideration  for  the  plaintiff's  land,  the 
defendant  agreed  to  pay  him  one  dollar  and  to  give  him  the  stock 
business  at  his  yards.  It  paid  him  the  one  dollar  and  gave  him  all 
the  business  for  the  year  1855  and  part  of  it  for  the  year  1856,  and  out 
of  this  business  the  plaintiff  made  profits  to  the  amount  of  about 
$6,000.  And  yet  he  brings  this  action  to  recover  the  entire  value  of 
the  land  conveyed  by  him  on  the  ground  of  a  total  failure  of  the 
consideration  of  his  conveyance.  A  mere  statement  of  the  case- shows 
that  the  action  must  be  without  foundation. 

If  one  pays  money,  or  renders  service,  or  delivers  property  upon  an 
agreement  condemned  by  the  statute  of  frauds,  he  may  recover  the 
money  paid,  in  an  action  for  money  had  and  received,  and  he  may 
recover  the  value  of  his  services  and  of  his  property  upon  an  implied 
assumpsit  to  pay,  provided  he  can  show  that  he  has  been  ready  and 
willing  to  perform  the  agreement,  and  the  other  party  has  repudi- 
ated or  refused  to  perform  it.     Gillet  v.   Maynard,   5  Johns.   85; 


700  DAY    V.    XEW    YORK    CENTRAL    R.  R.    CO.  [BOOK   II. 

King  V.  Brown,  2  Hill,  439 ;  Cook  v.  Doggett,  2  Allen,  439 ;  Erben  v. 
Lorillard,  19  N.  Y.  299;  Richards  v.  Allen,  17  Me.  296. 

While  the  law  in  such  case  will  not  sustain  an  action  based  upon  the 
agreement,  it  still  recognizes  its  existence  and  treats  it  as  morally 
binding,  and  for  that  reason  will  not  give  relief  against  a  party  not 
in  default,  nor  in  favor  of  a  party  who  is  in  default  in  his  perform- 
ance of  the  agreement. 

A  party  who  has  received  anything  under  such  an  agreement,  and 
then  has  refused  to  perform  it,  ought  in  justice  to  pay  for  what  he 
has  received,  and  hence  the  law  for  the  purpose  of  doing  justice  to  the 
other  party  will  imply  an  assumpsit. 

An  assumpsit  is  never  implied  except  where  the  justice  and  equity 
of  the  case  demand  it.  A  party  entering  into  an  agreement,  invalid 
under  the  statute  of  frauds,  is  charged  with  knowledge  that  he  cannot 
enforce  his  agreement,  and  if  he,  not  being  in  default,  has  received 
part  of  the  consideration  of  his  agreement,  upon  what  principle  of 
justice  or  equity  will  the  law  imply  an  assumpsit  on  the  part  of  the 
party  in  default  still  to  pay  the  entire  consideration?  Yet  such  an 
assumpsit  has  been  enforced  in  this  case. 

Suppose  one  agree  by  parol  to  work  for  another  for  ten  years  for 
the  consideration  of  $500,  to  be  paid  at  the  end  of  that  time,  and 
also  a  piece  of  land  to  be  conveyed  to  him,  and  at  the  end  of  the  time 
the  $500  be  paid  and  the  conveyance  of  the  land  refused,  can  he,  upon 
an  implied  assumpsit,  recover  the  entire  value  of  his  services?  If 
he  has  received  no  part  of  the  consideration  agreed  to  be  paid  to  him, 
the  law  will  imply  a  promise  to  pay  him  what  his  services  are  worth, 
and  will  enforce  such  promise.  But  what  shall  be  done  when  lie  lias 
received  part  of  the  consideration  ?  He  should  not  be  left  without 
any  remedy  for  tlie  balance  honestly  due  him,  but  upon  the  same 
principles  of  justice  and  equity  the  law  sliould  iin])ly  a  promise  to 
pay  the  balance. 

Here  the  plaintiff  was  to  receive  for  liis  land  one  dollar  and  the  stock 
business  at  his  yards.  'I'lic  our  dollar  may  be  regarded  as  merely 
nominal,  and  the  other  imi>t  lie  held  to  be  the  substantial  considera- 
tion. The  plaiiitilT  e\|)e(  led  to  get  the  vabie  of  his  land  in  the  profits 
which  he  should  make  ont  of  the  business  which  the  defendant  should 
give  him.  This  business  the  defendant  gave  to  the  plaintiff  for  one 
year,  at  least,  just  as  it  agreed  to,  and  out  of  it  the  plaintiff  appears 
to  have  made  profits  much  greater  than  the  value  of  the  land  eonveyed. 
These  profits  were  the  very  consideration  contemplated  hy  the  parties 
for  the  eonveyanee  of  the  land,  and  to  the  extent  that  the  ])laintiff 
has  had  the  business  and  profits,  be  has  had  the  very  consideration 
he  contracted  for.  Suppose  the  defendant  had  agreed  to  pay  plaintifl' 
$100  and  also  to  give  him  the  stock  business,  could  the  plaintiff  in 
this  action  after  receiving  the  $100  recover  the  whole  value  of  the 
land,  entirely  ignoring  the  money  payment?     Suppose,  instead  of 


CHAP.    II.]  DAY    V.    NEW    YORK    CENTliAL    R.  R.    CO.  701 

giving  the  defendant  land,  the  plaintiff  had  paid  it  money  for  the 
same  consideration,  could  he,  nnder  the  circumstances  of  this  case, 
recover  back  all  the  money  paid  in  an  action  for  money  had  and 
received?  Clearly  not.  The  very  basis  upon  which  the  action  rests 
forbids  it.  As  said  by  Lord  Mansfield,  in  Moses  v.  Macferlan, 
2  Burr.  1005,  "if  the  defendant  be  under  an  obligation  from  the 
ties  of  natural  justice  to  refund,  the  law  implies  a  debt,  and  gives 
this  action  founded  in  the  equity  of  the  plaintiff's  case."  And  he  says 
the  action  "is  equally  beneficial  to  the  defendant.  It  is  the  most 
favorable  way  in  which  he  can  be  sued;  he  can  be  liable  no  further 
than  the  money  he  has  received ;  and  against  that  may  go  into  every 
equitable  defence  upon  the  general  issue ;  he  may  claim  every  equitable 
allowance;  he  may  prove  a  release  without  pleading  it;  in  short,  he 
may  defend  himself  by  everything  which  shows  that  the  plaintiff, 
ex  cequo  et  bono,  is  not  entitled  to  the  whole  of  his  demand  or  to  any 
part  of  it."  And  in  Longchamp  v.  Kinny,  1  Dougl.  137,  the  same 
learned  judge  says :  "Great  benefit  arises  from  a  liberal  extension  of 
the  action  for  money  had  and  received,  because  the  charge  and  defence 
in  this  kind  of  action  are  both  governed  by  the  true  equity  and  con- 
science of  the  case."  It  would  be  against  both  equity  and  good  con- 
science to  allow  the  plaintiff  in  the  case  supposed  to  recover  all  the 
consideration  which  he  had  paid,  when  he  had  already  received  a  part 
of  the  benefit  and  consideration  which  he  had  contracted  for.  Within 
the  principles  laid  down  in  the  cases  cited  he  would  be  permitted  to 
recover  the  balance  only  of  the  money  paid  by  him  after  deducting 
the  value  of  so  much  of  the  consideration  as  he  had  received,  and  if  it 
could  be  shown  in  such  case  by  the  defendant  that  plaintiff  had  actually 
received  from  the  defendant  upon  the  agreement  more  than  he  had 
paid,  there  would  be  no  basis  of  law  or  equity  for  the  action  to  stand 
on.  The  same  principles  of  justice  and  equity  should  be  applied  to 
this  case.  The  plaintiff's  equities  can  be  no  greater  that  he  paid  in 
land  than  in  money.  The  agreement  cannot  be  enforced.  Neither 
party  can  in  this  action  be  allowed  any  benefit  from  it  or  any  damage 
for  its  breach.  The  defendant  having  repudiated  the  agreement,  the 
plaintiff  can  recover  for  his  land  as  if  there  had  been  no  agreement 
as  to  the  amount  of  the  consideration,  but  he  must  allow  so  much 
of  the  consideration  as  has  been  paid ;  and  if  he  has  received  more 
in  the  profits  of  the  business  which  the  defendant  brought  to  him 
under  the  agreement  than  the  value  of  his  land,  he  can  recover  nothing. 
If  the  profits  are  less  than  the  value  of  the  land,  then  he  can  recover 
the  balance. 

It  was  not  necessary  for  the  plaintiff  to  tender  the  profits  to  the 
defendant  before  the  commencement  of  the  action.  They  were  part 
of  the  consideration  received  by  him  for  his  conveyance,  and  he  has 
the  same  right  to  hold  them  as  if  so  much  money  had  been  paid  to 
him  bv  the  defendant.     His  claim  is  against  the  defendant  for  the 


702  DOWLING   V.   MC  KENNEY.  [BOOK   II. 

balance,  if  any,  of  the  value  of  the  land.  These  views  are  fully  sup- 
ported by  well-recognized  principles  of  law.  I  find  no  authority  in 
conflict  with  them,  and  the  case  of  Eichards  v.  Allen,  17  Maine,  296, 
is  the  only  authority  which  has  come  to  my  notice  directly  in  point. 
In  that  case  there  was  a  verbal  contract  between  the  plaintiff  and 
defendant  for  the  purchase  and  sale  of  a  farm,  and  the  plaintiff  had 
delivered  to  the  defendant  upon  the  contract  a  quantity  of  brick  and  a 
yoke  of  oxen.  After  the  plaintiff  had  been  in  possession  of  the  farm 
for  about  twenty  years  the  defendant  conveyed  it  to  another  person 
and  refused  to  convey  to  the  plaintiff.  He  then  sued  the  defendant 
in  assumpsit  for  the  value  of  the  brick  and  oxen,  and  it  was  held 
that  he  could  recover,  but  that  lie  must  allow  for  the  use  of  the  land. 
The  court  says:  "But  the  plaintiff's  claim  must  be  limited  to  what 
is  just  and  equitable  under  all  the  circumstances.  He  had  made  some 
payments,  but  he  had  enjoyed  the  farm  for  eighteen  or  twenty  years. 
The  jury  should  have  been  permitted  to  take  this  into  consideration 
even  without  an  account  in  offset,  as  it  was  necessarily  connected 
with  the  plaintiff's  claim,  and  was  of  a  character  to  affect  and 
qualify  it."' 

My  conclusion,  therefore,  is  that  the  judgment  should  be  reversed 
and  new  trial  granted,  costs  to  abide  event. 

All  concur  except  Johnson,  C,  not  sitting. 

Judgment  reversed.^ 


DOWLING  V.  McKENNEY. 

Supreme  Judicial  Court  of  Massachusetts,  1878. 

[124  Massachusetts  Reports,  478.] 

Contract.  T^e  declaration  contained  three  counts.  The  first  was 
to  recover  $200,  on  an  account  annexed,  for  "furnishing  materials  for, 
and  labor  and  work  in  making,  a  monument."  The  second  was  as 
follows:  "And  the  plaintiff  says  that  he  made  an  agreement  with  the 
defendant  to  furnisli  materials  and  construct  for  her  a  monument  for 
the  sum  of  two  hundred  dollars ;  that  he  furnished  materials  and  made 
said  monument  for  the  defendant,  and  tendered  the  .same  to  the  de- 
fendant ;  and  that  she  owes  him  therefor  the  sum  of  two  hundred  dol- 
lars." The  third  was  on  an  account  annexed,  and  contained  the  fol- 
lowing items:  "To  ten  days'  labor  on  monument,  $50.  To  three 
days'  services  in  preparing  land  and  foundation  for  same,  $15."  An- 
swer, a  general  denial. 

At  the  trial  in  the  Superior  Court,  before  Dewey,  J.,  the  plaintiff 

'See  as  to  measure  of  recovery  Purkcr  v.  Taintcr  (1877)  123  Mass.  185. — 
Ed. 


CHAP.    II.  J  DOWLING    V.    MC  KENNEY.  703 

testified  that  he  was  a  manufacturer  of  monuments  and  grave-stones, 
keeping  on  hand  stock  and  partly  finished  monuments,  to  be  finished 
to  order;  that  the  defendant  came  to  his  shop  and  said  she  would  like 
to  get  a  monument;  that  he  showed  her  several  monuments  partially 
manufactured,  among  them  the  one  in  question,  the  price  of  which 
he  told  her  was  $250,  when  finished  with  base,  cap,  and  plinth,  and 
polished;  that  she  said  she  had  some  land,  and  he  said  perhaps  they 
might  trade  with  the  piece  of  land ;  that  if  he  could  get  a  piece  of  land 
at  a  reasonable  price  he  might  trade  with  her ;  that  if  she  would  sell  the 
land  at  the  same  price  for  which  she  had  sold  another  piece,  he  would 
trade  with  her  for  the  monument;  that  they  went  on  the  land  and 
looked  at  the  lots,  for  one  of  which  she  asked  $4:35 ;  that  he  told  her 
he  would  throw  oif  $50  on  the  monument,  calling  it  $200  complete,  if 
she  would  throw  $35  off  on  the  lot,  and  would  give  her  $100  in  cash, 
and  $100  later,  and  the  monument  completed  with  the  inscription, 
for  the  lot  of  land;  and  that  to  this  proposition  she  agreed,  and  the 
lot  was  selected  and  agreed  on. 

There  was  also  evidence  that  subsequently  the  plaintiff  purchased 
a  plinth,  and  one  of  his  workmen  worked  three  or  four  days,  fitting 
and  polishing  the  monument,  putting  on  the  cap  and  mouldings,  and 
one-third  of  the  inscription,  which  the  defendant  had  given  him  to  be 
put  on  the  monument,  at  the  time  of  the  original  contract,  was  put  on, 
taking  three  days'  work;  that  the  defendant  then  notified  the  plain- 
tiff that  she  would  not  take  the  monument,  as  she  had  been  advised  it 
was  too  large,  and  refused  thereafter  to  take  it ;  that  subsequently  the 
plaintiff  completed  the  monument  and  inscription,  and  offered  to  de- 
liver it  to  her,  and  pay  her  $100  cash  and  give  her  his  note  for  $100, 
secured  by  mortgage  on  the  land,  and  demanded  a  deed  of  the  land; 
that  she  refused  to  accept  the  monument,  money,  and  note,  and  re- 
fused to  deliver  him  a  deed  of  the  land. 

Upon  this  evidence,  the  plaintiff  contended  that  he  had  the  right  to 
recover  the  sum  of  $200  for  furnishing  materials  and  completing  the 
monument,  and  that,  if  he  could  not  recover  for  the  materials  or 
the  monument,  he  had  a  right  to  recover  for  his  labor  in  completing 
the  monument.  The  defendant  contended  that  the  Gen.  Sts.  c.  105, 
§  1,  cl.  4,  and  §  5,  were  a  bar  to  the  action.  The  Judge,  by  consent 
of  parties,  before  verdict,  reported  the  case  for  the  determination 
of  this  court.  If,  on  this  evidence,  the  action  could  not  be  maintained, 
judgment  was  to  be  entered  for  the  defendant;  otherwise,  the  case  to 
stand  for  trial. 

ExDicoTT,  J.  It  appears  from  the  report  that  the  defendant  orally 
agreed  to  convey  to  the  plaintiff'  a  lot  of  land  valued  at  $400,  and  to 
take,  in  exchange  or  payment  therefor,  a  monument,  estimated  to  be 
of  the  value  of  $200,  when  completed,  and  the  balance  in  money. 
After  the  monument  was  finished,  the  plaintiff  tendered  it  to  the 
defendant,  together  with  the  balance  in  monev,  according  to  the  con- 


704  iKJW  LIXG    I'.    MC  KENNEY.  [BOOK   II. 

tract.    The  defendant  refused  to  accept  the  monument  or  money,  or 
to  give  the  deed. 

Whether  this  was  a  sale  or  an  exchange  of  property  is  immaterial. 
Assuming  that  it  was  an  exchange  of  the  land  for  the  monument,  with 
a  balance  in  money  to  be  paid  by  the  plaintiff,'  it  is  to  be  governed 
by  the  same  rules  as  apply  to  a  sale  when  the  whole  consideration  is 
to  be  paid  in  money.  Anon.,  3  Salk.  157;  Commonwealth  v.  Clark, 
14  Gray,  367,  372;  Howard  v.  Harris,  8  Allen,  297.  The  contract 
was  therefore  within  the  prohibition  of  the  statute  of  frauds.  Gen. 
Sts.  c.  105,  §  1.  cl.  4.  The  oral  promise  on  the  part  of  the  defend- 
ant was  not  to  pay  money  for  the  monument,  but  to  convey  a  lot  of 
land.  If  the  promise  had  been  to  pay  in  money  for  the  monument, 
when  completed,  it  might  have  come  within  the  rule,  that  an  agree- 
ment to  construct  or  build  an  article  to  be  paid  for  when  finished  need 
not  be  proved  by  a  memorandum  in  writing,  as  in  Mixer  v.  Howarth, 
21  Pick.  205.  But  that  view  of  the  case  cannot  be  sustained  on  the 
evidence  as  reported;  it  does  not  appear  to  have  been  the  intention 
of  the  parties  to  make  any  contract,  except  that  which  included  the 
conveyance  of  the  land,  which  was  the  sole  consideration  moving 
from  the  defendant.  That  contract  was  not  in  writing,  and  cannot 
be  enforced,  in  whole  or  in  part.  The  plaintiff  cannot  separate 
that  portion  which  relates  to  the  building  of  the  monument  from  the 
whole,  and  recover  upon  it  as  a  distinct  undertaking.  This  would 
be  to  make  a  new  contract  between  the  parties;  for  it  was  no  part 
of  the  agreement,  as  stated,  to  pay  $200  in  money  for  the  monument, 
but  to  allow  that  sum  as  a  portion  of  the  consideration  for  the  con- 
veyance of  the  land.  The  plaintiff  therefore  cannot  recover,  either 
upon  his  first  or  second  count,  for  the  value  of  the  monument. 

But  the  plaintiff  contends  that  he  may,  under  his  third  count,  re- 
cover for  his  labor  in  completing  the  monument.  It  is  true,  that 
when  a  person  pays  money,  or  renders  service,  or  makes  a  conveyance, 
under  an  agreement  within  the  prohibition  of  the  statute  of  frauds, 
and  the  other  party  refuses  to  perforin  it,  an  action  will  lie  to  re- 
cover the  money  so  paid,  or  the  value  of  the  services  rendered  or  the 
property  conveyed ;  but  it  is  on  the  ground  that  a  party  who  lias 
received  a  benefit,  under  an  agreement  which  he  has  repudiated,  shall 
be  held  to  pay,  upon  an  implied  assumpsit,  for  that  which  he  has 
received.  Dix  v.  Marcy,  lUi  Mass.  410,  and  cases  cited.  In  the  case 
at  bar,  the  defendant  received  no  IxMiofit  from  the  labor  perfornK'd 
in  completing  the  monument,  nlllinnnli  llic  plaiiiliU'  may  have  suf- 
fered a  loss  i)ecause  he  is  unai)le  to  enforce  his  contract,  and  no  re- 
covery can  be  had  for  the  labor  on  the  monument,  as  charged  in  the 
account  annexed   to  Die  Ihird  coniil. 

But  this  rule  docs  not  npplv  to  tln'  ilrm  i'ov  si'rvicfs  iicrfoniKMl 
by  the  piaintifT  in  prei)iirin,L^  the  bind  ;iiid  fnundation.  If  this  re- 
fers to  the  lot  of  the  defendant  where  the  nioiuiiiient  was  to  stand, 


CHAP.    II.]  KELLY   V.    THOMPSON.  705 

and  the  work  was  done  upon  it,  we  cannot  say  as  matter  of  law  that 
it  was  not  of  benefit  to  the  defendant.  That  is  a  question  of  fact  to  be 
determined,  and  by  the  terms  of  the  report  the  entry  must  be 

Case  to  stand  for  trial} 


In  Kelly  v.  Thompson  (1902)  181  Mass.  122,  Loring,  J.,  said: 
The  defendant  now  contends  "the  rule  of  law  to  be  that  where  two 
parties  have  made  an  agreement  which  is  invalid  by  reason  of  the 
statute  of  frauds  and  one  party  has  paid  money  or  other  valuable  con- 
sideration relying  upon  said  invalid  agreement,  that  if  this  agree- 
ment is  repudiated  by  the  party  who  has  received  the  money,  that  the 
party  paying  the  money  can  recover  the  sum  in  an  action  of  as- 
sumpsit for  money'  had  and  received,"  and  cites  Thompson  v.  Gould, 
20  Pick.  134;  Cook  v.  Doggett,  2  Allen,  439;  Williams  v.  Bemis,  108 
Mass.  91 ;  White  v.  Wieland,  109  Mass.  291;  Dix  v.  Marcy,  116  Mass. 
416;  Root  V.  Burt,  118  Mass.  521;  Parker  v.  Tainter,  123  Mass.  185; 
Holbrook  v.  Clapp,  165  Mass.  563;  Miller  v.  Roberts,  169  Mass.  134. 

But  the  rule  established  by  the  cases  cited  by  the  defendants  is  not 
accurately  stated  by  him,  and  does  not  support  his  contention  in  this 
case. 

That  rule  is  that  if  a  plaintiff  has  paid  money,  conveyed  property, 
or  rendered  services  under  an  oral  agreement  within  the  statute  of 
frauds,  which  agreement  the  defendant  wholly  refuses  to  perform,  he 
can  recover  the  money  paid,  or  the  value  of  the  property  conveyed,  or 
of  the  services  rendered ;  in  that  case  there  is  a  total  failure  of  con- 
sideration and  the  plaintiff  can  recover  the  value  of  any  benefit  in- 
uring to  the  defendant  as  a  result  of  the  transaction.  To  the  cases 
cited  by  the  defendant  may  be  added  Basford  v.  Pearson,  9  Allen, 
387;  Pulbrook  v.  Lawes,  1  Q.  B.  D.  284;  Riley  v.  Williams,  123  Mass. 
506;  Dowling  v.  McKenney,  124  Mass.  478;  O'Grady  v.  O'Grady, 
162  Mass.  290;  and  see  Kneil  v.  Egleston,  140  Mass.  202,  204;  and 
Holbrook  v.  Clapp,  165  Mass.  563,  564,  565.  And  further,  where 
the  plaintiff  has  performed  his  agreement  in  whole,  but  the  de- 
fendant has  performed  his  agreement  in  part  only,  and  a  benefit 
inures  to  the  defendant  as  a  result  of  the  transaction,  the  plaintiff 
can  recover  on  an  implied  promise  to  the  extent  of  that  benefit. 
Williams  v.  Bemis,  108  Mass.  91;  White  v.  Wieland,  109  Mass.  291; 
Dix  V.  Marcy,  116  Mass.  416;  Miller  v.  Roberts,  169  Mass.  134. 
The  ground  of  recovery  in  that  case  is  that  the  defendant  has  got 
the  plaintiff's  property  without  having  fully  paid  for  it,  or  that  the 

nVhere  an  uncle  of  the  plaintiff  orally  promised  the  latter,  an  emancipated 
infant,  $1000  if  he  would  return  and  work  for  his  father  during  his  own  mi- 
nority, and  the  work  was  performed.  Held,  no  recovery  against  the  uncle's 
estate,  as  the  contract  was  void  under  the  statute,  and  the  defendant  received 
no  benefit.    Bristol  v.  Sutton  (1897)   115  Mich.  365.— Ed. 


TOG  COLLIER  V.    COATES.  [bOOK  IK 

plaintiff  has  paid  the  tlefondant  in  advance  without  receiving  a 
(juid  pro  quo.  A  recovery  is  had  on  the  same  principles  as  that  given 
to  a  contractor  who  has  erected  a  building  on  the  defendant's  land 
for  which  he  cannot  recover  under  the  contract  between  him  and 
the  owner  of  the  land,  and  which  was  recently  discussed  at  length  in 
Gillis  V.  Cobe,  177  Mass.  584, 


(2)    The  Plaintiff  is  in  Default. 

COLLIER  V.  COATES. 

Supreme  Court  of  New  York,  1854. 

[17  Barlour,  471.] 

This  was  an  appeal  from  a  judgment  of  the  Steuben  County  Court. 
The  action  was  commenced  before  a  justice  of  the  peace,  to  recover 
back  the  sum  of  $65  which  had  been  paid  by  the  plaintiff  upon  a  parol 
contract  for  the  sale  of  a  farm  by  the  defendant  to  the  plaintiff.  The 
complaint  was  for  money  lent,  and  money  paid.  The  defendant  denied 
the  allegations  in  the  complaint,  and  stated  that  if  he  had  received  any 
money  from  the  plaintiff  it  was  upon  the  condition  that  the  defendant 
would  enter  into  a  written  agreement  with  the  ])laintiff,  at  a  future 
day,  which  the  defendant  alleged  he  was,  and  at  all  times  had  been, 
ready  to  do,  and  he  further  averred  that  he  had  suffered  great  damage 
and  expense  by  reason  of  the  plaintiff  not  performing  his  agreement. 
A  parol  agreement  between  the  parties,  for  the  sale  of  the  defendant's 
farm  to  the  plaintiff,  was  proved,  and  the  price  was  agreed  upon.  The 
plaintiff  paid  to  the  defendant  $65  upon  the  contract,  and  was  tO' 
pay,  within  a  week  or  ten  days,  enough  more  to  make  $200 ;  and 
then  a  written  contract  was  to  be  executed  by  the  ))arties.  Subse- 
quently the  plaintiff  came  back  and  told  the  defendant  he  could  not 
make  out  the  $200,  and  therefore  could  not  take  the  farm,  and  he 
sent  word  to  the  defendant,  by  his  son,  that  ho,  the  defendant,  might 
have  the  $65  the  plaintiff  had  paid  him  for  his  damages,  or  he  might 
pay  back  some  part  of  it  if  he  could  afford  to.  The  jury  found  a 
verdict  in  favor  of  the  plaintiff  for  $65,  and  the  justice  rendered 
judgment  for  that  sum,  with  costs.  On  appeal  the  County  Court 
allirmed  the  judgment. 

Hy  the  Court. — Johnson,  J.  1  regard  the  rule  as  well  settled,  in 
this  country,  at  least,  that  where  a  person  has  ])aid  money  upon  a 
parol  contract  for  the  purchase  <>f  hinds,  whieli  is  void  hy  tlie  statute 
of  frauds,  be  cannot  maintain  an  action  to  recover  hack  the  money 
so  paid,  so  long  as  the  other  party  to  whom  the  money  has  been  paid 
is  willing  to  perform  on  his  part. 


CHAP.    II.]  COLLIER    V.    COATES.  707 

The  doctrine  has  been  twice  distinctly  declared  in  our  own  court, 
where  the  question  was  directly  before  it.  Abbott  v.  Draper,  4  Denio, 
51;  Dowdle  v.  Camp,  13  Johns.  451.  The  same  question  has  been 
decided  in  the  same  way  repeatedly  in  several  of  the  courts  of  our 
sister  States,  where  the  point  was  directly  involved.  Coughlin  v. 
Knowles,  7  Met.  57;  Thompson  i;.  Gould,  20  Pick.  132,  142;  Duncan  v. 
Baird,  8  Dana,  101;  Lane  v.  Shackford,  5  N.  H.  133;  Shaw  v.  Shaw, 
6  Vt.  75 ;  Eichards  v.  Allen,  5  Shep.  296 ;  Sims  v.  Hutchins,  8  S.  &  M. 
328 ;  Beaman  v.  Buck,  9  S.  &  M.  257 ;  McGowen  v.  West,  7  Miss.  569 ; 
Khodes'  Adm'r  v.  Stow,  7  Al.  346 ;  Dougherty  v.  Goggin,  1  J.  J.  Marsh. 
374;  2  J.  J.  Marsh.  563.  In  several  of  the  cases  above  cited,  the  facts 
are  almost  identical  with  those  of  the  case  at  bar.  All  the  cases 
agree  that  if  the  party  receiving  the  money  refuses  to  perform  the 
agreement,  such  as  it  is,  on  his  part,  the  action  lies. 

I  doubt  whether  any  well-considered  case  can  be  found  in  the  courts 
of  this  country,  where  the  rule  above  laid  down  has  been  denied  or 
even  doubted.  Eice  v.  Peet,  15  Johns.  503,  is  cited  as  holding  a 
contrary  doctrine,  but  it  does  not.  That  case  turned  upon  the  insanity 
of  the  plaintilT  at  the  time  of  making  the  trade  and  turning  out  the 
note,  which  fact  the  court  considered  as  established  by  the  verdict 
of  the  jury.  The  court  do  indeed  say  that  the  plaintiff  might  have 
recovered  upon  the  ground  that  the  contract  for  the  exchange  of 
farms,  on  which  the  money  was  received,  being  by  parol,  was  void. 
But  the  decision  was  evidently  not  placed  upon  that  ground.  And 
besides,  although  the  defendant  in  that  case  alleged  in  his  plea  that 
the  plaintiff  had  failed  in  performing  his  agreement,  no  evidence 
seems  to  have  been  given  upon  the  subject,  and  there  is  nothing  in 
the  case  to  show  who  w^as,  in  fact,  in  fault  in  not  carrying  out  the 
agreement  to  exchange  farms.  The  decision  upon  the  point  pre- 
sented by  the  finding  of  the  jury  does  not  impugn  the  principle  con- 
tended for,  and  at  most  can  only  be  regarded  as  a  dictum  the  other 
way.  But  it  is  contended  by  the  learned  and  ingenious  counsel  for 
the  plaintiff  that  neither  Dowdle  v.  Camp  nor  Abbott  v.  Draper  are 
authorities  against  the  plaintiff's  right  to  recover,  because  in  each  of 
those  cases  the  plaintiff  was  in  possession  of  the  premises  purchased, 
and  might  have  enforced  a  specific  performance  of  the  agreement  in 
a  court  of  equity.  In  that  respect,  it  is  true,  the  two  cases  above  cited 
differ  from  the  case  here,  although  several  of  the  other  cases  cited  do  not. 
But  I  am  unable  to  perceive  how  that  circumstance  affects  the  prin- 
ciple upon  which  the  plaintiff  claims  the  right  to  recover.  The  founda- 
tion of  his  claim  is  that  the  money  was  paid  without  consideration. 
That  is,  that  having  been  paid  upon  a  promise  made  by  the  defendant 
which  the  law  would  not  compel  him  to  perform,  nor  mulct  him  in 
damages  for  refusing  to  perform,  and  which  was,  in  short,  void  by 
statute,  it  was  paid  without  any  consideration  whatever  which  the 
law  notices  or  regards.    But  this  condition  of  the  parties  is  not  in  the 


708  COLLIER    V.    COAXES.  [bOOK    II. 

least  altered  by  the  purchaser's  going  into  possession,  so  far  as  the 
validity  and  force  of  the  agreement  is  concerned.  It  is  still  void  by 
the  statute  of  frauds,  notwithstanding  tlie  possession.  Nothing  is 
better  settled  than  this,  that  part  performance  of  a  parol  contract 
void  by  statute  does  not  take  it  out  of  the  statute,  or  give  it  any 
validity  in  law  as  a  contract. 

To  whatever  extent  either  or  both  of  the  parties  may  have  gone  in 
the  performance  of  such  a  contract,  it  still  remains  of  no  legal  or 
binding  force  in  law,  in  every  stage  up  to  its  full  and  final  perform- 
ance and  execution  by  both.  If  it  is  conceded  that  possession  by  the 
plaintiff,  in  addition  to  the  payment,  w^ould  have  operated  to  defeat 
the  recovery  of  the  money  paid,  the  whole  ground  of  controversy  is 
surrendered.  It  could  make  no  difference  as  regards  the  right  of 
action,  so  far  as  the  question  of  consideration  is  concerned,  whether 
the  defendant  had  in  fact  performed  in  part  or  whether  he  was  willing 
and  offered  to  perform.  Besides,  when  the  other  party  is  willing 
and  offers  to  perform,  the  question  as  to  whether  the  plaintiff  could 
compel  him  to  do  so  in  case  of  his  refusal,  does  not  arise.  It  is  clear 
enough  that  in  case  of  a  refusal  the  action  lies,  and  the  refusal  is  the 
ground  upon  which  the  action  for  the  recovery  is  based.  Certainly  a 
willingness  or  an  offer  to  perform  must  be  regarded  as  placing  the 
defendant  in  as  favorable  a  situation  as  part  performance,  as  regards 
the  action  at  law. 

Courts  of  equity,  in  decreeing  the  specific  performance  of  such  con- 
tracts, do  not  proceed  upon  the  ground  that  the  contract  has  any  force 
or  validity  in  law,  but  only  that  it  is  binding  in  conscience,  and  its 
performance  specifically  is  decreed,  expressly  to  prevent  fraud,  and 
for  the  very  reason  that  in  law  it  is  of  no  force.  What  courts  of 
equity  might  do,  or  refuse  to  do,  can  have  no  bearing  upon  the  legal 
effect  of  such  a  contract.  The  last  act  or  payment  by  either  party, 
or  both,  short  of  full  performance,  is  as  much  without  consideration  in 
law  as  the  first.  If  the  rules  of  equity  are  to  l)e  permitted  to  affect 
the  legal  right  of  recovery,  the  defendant  may  safely  invoke  them 
in  his  behalf  in  the  present  case.  But  they  are  not;  and  in  deter- 
mining the  question  here,  in  the  action  at  law,  they  may  as  well  be 
laid  entirely  out  of  view.  It  is  by  no  means  a  universal  rule  that 
money  paid,  without  a  consideration  good  in  law,  may  be  recovered 
back.  There  are  several  exceptions  to  it.  And  I  take  this  to  be  one 
which  is  well  esta))lished  by  numorous  adjudications. 

Tho  contract  here  upon  which  the  money  was  paid,  although  it  was 
so  far  void  that  the  law  would  lend  no  aid  in  enforcing  it,  was  not 
contrary  to  law.  It  was  noithfr  immoral  nor  illegnl.  It  was  one  which 
the  parties  had  a  right  to  maki'  and  carry  out.  'I'here  was  no  fraud 
or  mistake  of  facts.  The  money  was  voluntarily  paid  by  the  plaintiff, 
upon  a  promise  made  by  the  defendant,  whicli  the  former  knew  at 
the  time  he  could  not  oblige  the  latter  to  perform,  but  which  promise. 


CHAP.    II.]  COLLIER   V.    COATES.  709 

nevertheless,  he  agreed  to  accept  as  a  sufficient  consideration  for  the 
money  parted  with.  The  money  was  not  received  by  the  defendant 
as  a  loan,  but  as  a  payment.  It  was  not  received  to  the  plaintiff's  use. 
And  as  long  as  the  defendant  is  willing  to  do  what  he  agreed  to  do, 
in  consideration  of  the  payment,  the  law  will  not  presume  any  promise 
to  repay  it,  but  will  leave  the  parties  to  stand  where  they  voluntarily 
placed  themselves  by  their  arrangement,  until  the  defendant  refuses 
to  carry  it  out.  Cases  of  great  hardship  are  suggested  as  a  reason 
for  the  adoption  of  the  rule  contended  for  by  the  plaintiff's  counsel. 
One  of  which  is,  that  otherwise  the  purchaser  under  such  a  contract 
might  go  on  making  payments  until  the  last;  and  although  satisfied 
his  bargain  is  not  an  advantageous  one,  yet  bound  to  make  his  pay- 
ments or  lose  what  he  has  paid,  while  the  other  party  all  this  time  is 
at  perfect  liberty  to  repudiate  the  arrangement,  and  may  do  so  at  the 
last  moment,  to  the  serious  injury  of  the  purchaser.  And  it  is  asked 
if  it  is  right  to  give  one  party  such  an  advantage  over  the  other  ?  It 
would  be  easy  to  suggest  cases  of  hardship  on  the  other  side,  if  the 
right  to  recover  in  any  case  were  to  be  controlled  by  any  such  con- 
siderations. Take  the  case  at  bar,  for  an  example.  The  evidence  shows 
that  when  the  plaintiff  entered  into  the  arrangement  with  the  defend- 
ant and  made  the  payment,  the  latter  was  engaged  in  putting  in  a 
crop  of  wheat;  that  the  plaintiff  requested  the  defendant  to  suspend 
operations,  as  he  would  want  to  put  the  land  to  some  other  use,  and 
that  the  defendant  did  suspend,  and  waited,  expecting  the  plaintiff  to 
fulfil  his  engagement,  until  it  was  too  late  to  put  in  his  crop ;  in 
consequence  of  which  he  was  injured  to  the  amount  of  over  $100. 

But  suppose  the  whole  purchase  price  had  been  paid,  and  the  defend- 
ant, in  the  confident  expectation  of  the  plaintiff's  acceptance  of  the 
title,  had  gone  and  purchased  another  farm  with  the  money,  and 
involved  himself  in  liabilities  which  would  be  utterly  ruinous  should 
the  other  party  be  allowed  to  repudiate  and  recover  back  the  money. 
It  may  be  asked,  would  it  be  right  to  allow  him  to  do  so?  It  is 
sufficiently  obvious,  however,  that  neither  the  plaintiff's  right  to 
recover  back  the  money,  nor  the  defendant's  right  to  retain  it,  can 
rest  in,  or  derive  any  aid  from,  such  considerations  as  these.  The 
principle  which  governs  is  more  fixed  and  stable.  It  is  clear  that, 
by  the  rules  of  equity,  the  plaintiff  could  not  recover  until  he  had 
first  made  the  defendant  whole  for  the  damage  he  had  occasioned  by 
the  breach  of  his  engagement,  or  offered  to  do  so.  And  the  law  will 
not,  I  think,  aid  the  party  thus  in  the  wrong,  by  presuming  a  promise 
of  repayment,  in  his  favor,  until  the  other  party  shall  refuse  to  go  on 
and  carry  out  the  agreement  upon  which  the  money  was  paid.  The 
rule  which  I  suppose  to  be  established  seems  to  me  to  be  one  founded 
in  reason  and  good  sense,  which  ought  to  be  upheld.  And  I  regard 
it  as  being  too  well  settled  upon  authority  to  be  departed  from,  except 
upon  the  most  cogent  reasons,  and  from  the  clearest  convictions  of  its 


710  ABBOTT  V.    IXSKIP.  [bOOK  II. 

unsoundness.     I  am  of  opinion,  therefore,  that  the  judgment  of  the 
County  Court  and  that  of  the  justice  should  be  reversed. 


ABBOTT  V.  INSKIP. 

Supreme  Court  of  Ohio,  1875. 

[29  Ohio  State,  59.] 

Motion  for  leave  to  file  a  petition  in  error  to  the  District  Court  of 
Brown  County. 

The  plaintiff,  an  infant,  sued  the  defendant  to  recover  the  value 
of  work  and  labor  performed  by  the  plaintiff  for  the  defendant 
between  February,  1871,  and  February,  1875. 

The  defendant  in  his  answer  set  up  that  the  work  and  labor  sued 
for  were  rendered  under  a  verbal  contract  entered  into  between  the 
defendant  and  the  plaintiff's  mother  in  the  year  186-1. 

That  at  the  date  of  the  contract  the  plaintiff  was  only  nine  3'ears 
old,  and  was  in  the  custody  and  under  the  control  of  his  mother,  who 
was  entitled  to  his  earnings  and  labor  during  infancy.  By  the  terms 
of  the  contract  the  plaintiff  was  to  live  with  and  serve  the  defendant 
until  he  arrived  at  twenty-one  years  of  age,  in  consideration  of  which 
defendant  was  to  provide  him  with  food,  clothing,  medicine,  and 
education,  etc.,  and,  upon  arriving  at  age,  was  to  give  him  a  horse, 
saddle,  bridle,  etc.  That  the  defendant  had  performed,  and  was 
willing  to  perform  all  the  conditions  on  his  part,  but  the  plaintiff 
without  cause  had  left  his  home  and  service  before  arriving  at  age. 

A  demurrer  to  the  answer  was  overruled,  and  plaintiff  replied. 

On  the  trial  in  the  court  of  common  pleas  verdict  and  judgment 
were  rendered  for  the  defendant.  This  judgment  was  affirmed  by  the 
district  court. 

^IcIlvaixe,  J.  There  is  no  question  made  as  to  the  right  of  the 
plaintiff's  mother  to  have  bound  him  by  a  written  contract  duly  ex- 
ecuted. 

The  contention  of  the  plaintiff  in  error  is: 

1.  That  the  agreement  set  up  in  the  answer  was  void  under  the 
statute  of  frauds. 

2.  That  the  plaintiff  in  error  was  not  bound  by  it  under  the  statute 
concerning  apprentices  and  servants. 

It  is  true  that  the  agreonii-iit  coiild  not  have  l)een  performed  within 
a  year  from  the  making  tluM-eof,  and,  therefore,  under  the  statute  of 
frauds,  it  could  not  have  been  enforced  by  action.  It  miglit,  how- 
ever, have  been  performed  by  the  parties,  and,  when  ])erforniei].  the 
parties  would  have  Ix'en  bound  by  it ;  or,  if  the  plaintiff  had  piM-formcd, 
the  defendant  would  have  been  bound  to  perform  it  on  his  ]>art. 


CHAP.    II.]  GALVIN    V.    PRENTICE.  711 

The  plaintiff  in  his  action  below  relied  on  an  implied  promise,  on 
the  part  of  the  defendant,  that  he  would  pay  the  plaintiff  the  reason- 
able value  of  his  services.  The  express  promise  contained  in  the 
agreement,  under  which  the  plaintiff'  assumed  to  render  the  service, 
excludes  the  presumption  of  the  implied  promise  relied  on.  The 
default  of  the  defendant,  or  his  refusal  to  go  on  with  a  contract 
which  falls  within  the  statute  of  frauds,  is  an  essential  condition  of 
the  right  to  recover  for  services  rendered  under  it.  It  is  only  in 
cases  where  the  defendant,  by  reason  of  his  own  breach  of  such  con- 
tract, is  estopped  from  setting  it  up  as  a  defense  that  an  action  for 
the  value  of  the  work  done  under  it  can  be  maintained. 

That  the  contract  was  not  executed  in  conformity  to  the  statute  con- 
cerning apprentices  and  servants  is  not  a  good  reply  to  such  con- 
tract. Such  want  of  conformity  no  doubt  discharged  the  plaintiff 
from  the  duty  of  remaining  with  the  defendant.  But,  upon  his 
voluntary  withdrawal  from  the  service,  it  gave  him  no  right  of  action 
to  recover  for  services  rendered  under  the  contract  for  the  reasons 
above  stated. 

Motion  overruled. 


Galvin  v.  Prentice  (1871),  45  N.  Y.  162.  The  plaintiff,  by  an 
oral  contract,  undertook  to  work  for  defendant  for  three  j-ears  at 
specified  wages,  part  of  which  was  to  be  retained  until  the  end  of  the 
term,  with  the  understanding  that  if  the  plaintiff  voluntarily  left 
before  that  time  this  sum  was  to  be  forfeited.  He  worked  about  two 
years  and  then  stopped.  The  evidence  was  conflicting  as  to  whether 
or  not  he  was  discharged.  In  an  action  brought  for  the  amount 
retained,  the  lower  court,  asserting  that  it  was  immaterial  who  was 
in  default  under  the  contract,  directed  a  verdict  for  the  plaintiff,  for 
the  reasonable  value  of  the  services. 

Eapallo,  J.  That  part  of  the  charge  of  the  Judge,  in  which  he 
instructed  the  jury,  that  the  contract,  although  void,  might  be  con- 
sidered prima  facie  evidence  of  the  value  of  the  services,  was,  under 
the  circumstances  of  this  case,  erroneous;  and  the  exception  thereto 
was  well  taken. 

The  contract  price  of  the  services  was  fixed  with  reference  to  a  con- 
tinuous service  of  three  years.  It  appeared,  upon  the  plaintiff's  own 
showing,  that' the  contract  was  that  he  should  work  for  three  years, 
and  be  paid  the  portion  of  his  wages  now  in  question,  only  in  case 
he  served  three  years,  or  was  discharged  for  want  of  work. 

The  plaintiff  claimed  tliat  he  had  been  discharged,  but  the  evidence 
on  that  point  was  conflicting,  and  the  judge  charged  the  jury  that  the 
discharge  had  nothing  to  do  with  the  case.  It  cannot  be  assumed, 
therefore,  that  the  fact  of  discharge  was  established. 

It  appeared  that  the  plaintiff  was  to  learn  the  business  in  which 


712  (i.VLVlN    r.    PRENTICE.  [iJOOK    II. 

he  was  employed.  It  cannot  be  supposed  that  his  work  was  of  the 
same  vahie  during  the  prior  part  of  the  term  of  liis  empkjyment,  as  it 
would  be  during  the  latter  part,  when  his  proficiency  must  naturally 
have  increased.  The  price  agreed  upon  for  the  three  years  was  not, 
therefore,  competent  evidence  of  the  value  of  the  sei'viees  during  the 
first  and  second  years,  and  the  contract,  being  void  by  tlie  statute,  could 
not  be  so  far  enforced  as  to  determine  the  rate  of  compensation. 

The  exception  to  the  ruling  on  that  point  is  fatal  to  the  judgment. 
But  it  must  not  be  inferred  that  we  agree  to  the  proposition,  that  if 
there  had  been  a  correct  ruling  on  the  question  of  damages,  the 
plaintiff  would  have  been  entitled  to  recover  without  proving  that  he 
was  discharged,  or  that  the  defendant  was  in  default. 

Where  payments  are  made,  or  services  rendered  upon  a  contract 
void  by  the  statute  of  frauds,  and  the  party  receiving  the  services  or 
payments  refuses  to  go  on  and  complete  the  performance  of  the  con- 
tract, the  other  party  may  recover  back  the  amount  of  such  payments 
or  the  value  of  the  services,  in  an  action  upon  an  implied  assumpsit. 

But  to  entitle  him  to  maintain  such  action  he  must  show  that  the 
defendant  is  in  default.  King  v.  Brown,  2  Hill,  487.  The  rule  is 
very  clearly  stated  in  Lockwood  v.  Barnes,  3  Hill,  128,  as  follows: 
"A  party  who  refuses  to  go  on  with  an  agreement  void  by  the  statute 
of  frauds,  after  having  derived  a  benefit  from  a  part  performance, 
must  pay  for  what  he  has  received." 

So  in  Dowdle  v.  Camp,  12  Johns.  451;  Abbott  v.  Draper,  4  Denio, 
51,  53;  and  Collier  v.  Coatcs,  17  Barb.  471,  it  was  held  that  money 
paid  on  a  parol  contract  for  the  purchase  of  lands,  which  is  void  by 
the  statute  of  frauds,  cannot  be  recovered  ])aok  unless  the  vendor 
refuses  to  perform;  and  to  the  same  effect  arc  numerous  decisions  of 
the  courts  of  our  sister  States,  referred  to  in  Collier  v.  Coates. 

The  default  of  the  defendant  or  his  refusal  to  go  on  with  the 
contract  is  recognized  as  an  essential  condition  of  the  right  to  recover 
for  services  rendered  or  money  paid,  under  any  description  of  contract 
void  by  the  statute  of  frauds.  Erben  v.  Lorillard,  1!)  N.  Y.  302  and 
304;  Burlingame  /'.  Burlingame,  7  Cow.  92;  Kidder  v.  Hunt.  1  Pick. 
328;  Thompson  v.  (iould,  20  Pick.  134,  142. 

When  the  contract  is  entire,  and  one  party  is  willing  to  complete 
the  performance,  and  is  not  in  default,  no  promise  can  be  implied 
on  his  part  to  comi)ensate  the  othei-  party  for  a  part  performance. 

Tlie  express  [)romise  appearing  ujjom  the  plaintitr's  own  showing, 
;d though  it  cannot  be  enforced  bv  reason  of  the  statute,  excludes  any 
implied  promise.  W'hiliiey  r.  Sullivan,  7  Mass.  100;  Jennings  v. 
("amp,  13  Johns.  fKi.  h\r  press  inn  facif  rrssnrc  fnrittini.  ^lerrill  v. 
Knnne,   I  Taunt.  ;{2!> ;  Allen  v.  Ford,  10  I'iek.  217. 

The  effeet  of  the  statute  is  to  prevent  either  party  from  (>nforeing 
j)erformance  of  the  verbal  contract  against  tlie  otlier.  but  not  to  make 
a  difTercnt  contract  between  them. 


CHAP.    II.]  DUTCH    V.    WARREN.  713 

An  implied  promise  to  pay  for  part  performance  can  arise  only  when 
the  party  sought  to  be  charged  has  had  the  benefit  of  the  part  per- 
formance, and  has  himself  refused  to  proceed,  or  otherwise  prevented 
or  waived  full  performance.  Munro  v.  Butt,  8  Ell.  &  Bl.  738 ;  Smith  v. 
Brady,  17  N.  Y.  173;  13  Johns.  94;  8  Cow.  63;  or  where,  after  the 
making  of  the  contract,  full  performance  has  been  rendered  impossible, 
by  death  or  otherwise,  without  fault  of  the  contracting  party.  Wolfe  v. 
Howes,  20  N.  Y.  197. 

The  judgment  should  be  reversed,  and  a  new  trial  ordered,  with 
costs  to  abide  the  event. 

Peckham  and  Folger,  JJ..  concurred;  Grover,  J.,  concurred  in 
the  result  on  the  ground  of  error  in  the  charge;  C.  J.  did  not  vote; 
Allen,  J.,  dissented.^ 


(2)  THE  default  is  WILFUL  AND  INEXCUSABLE. 

(a)   The  Defendant  is  in  Default. 

DUTCH  V.  WARREN. 
Michaelmas,  at  Guildhall,  Common  Pleas,  1721. 

[1  Strange,  406.-] 

Case  for  money  had  and  received  to  the  plaintiff's  use.  The  case 
was,  the  plaintiff  paid  money  on  a  promise  to  transfer  stock  at  a 
future  day,  which  not  being  done  the  plaintiff  brought  this  action. 
At  the  trial  the  doubt  was,  whether  the  plaintiff  had  brought  a  proper 
action,  because  at  the  time  this  money  was  paid  the  plaintiff  never 
■  intended  to  have  it  again ;  and  the  promise  to  transfer  the  stock 
was  a  sufficient  consideration  for  his  parting  with  the  money.  The 
Chief  Justice  [King]  directed  the  court  should  be  moved ;  and  they 
were  all  of  opinion,  that  the  action  was  well  brought ;  not  for  the 
whole  money  paid,  but  the  damages  in  not  transferring  the  stock 
at  that  time,  which  was  a  loss  to  the  plaintiff,  and  an  advantage  to  the 
defendant,  who  was  receiver  of  the  difference  money  to  the  "use  of  the 
plaintiff.'^ 

*See,  Kriger  v.  Leppel  (1889)  42  Minn.  6,  where  the  agreement  was  for 
services  for  a  specified  time  at  a  specified  gross  sum,  to  be  paid  when  the  ser- 
vices were  all  rendered,  and  the  party  coninioncpd  to  render  services,  but  quit 
without  cause:  Held,  no  recovery. — Ed. 

-This  case  is  more  fully  reported  by  Lord  Mansfield  in  Moses  v.  Macfarlan 
<1760)  2  Burr.  1005,  printed  ante,  p.  4,  7.— Ed. 

'The  earlier  cases  were  contra:  Brigs'  case  (1623)   Palm.  364;  Dewbery  v. 


714  ANONYMOUS.  [BOOK  II. 

ANONYMOUS. 

Michaelmas,  at  Guildhall,  1721. 

[1  Strange,  407.] 

A  MAN  paid  money  on  a  contract  for  the  old  stock  of  a  company, 
and  the  party  gave  him  so  many  shares  in  the  additional  stock.  Upon 
this  the  other  brings  his  action  for  the  money,  as  so  much  money  had 
and  received  to  his  use.  And  the  Chief  Justice  [King]  held,  it  well 
lay.  because  the  thing  contracted  for  was  not  delivered:  he  said  it 
would  have  been  otherwise,  if  the  thing  contracted  for  had  been 
delivered,  though  to  a  less  value.^ 

Chapman  (1695)  Holt,  35;  Anonymous  (1696)  Comb.  447.  See  also  Holmes  v. 
Hall  (1704)  Holt,  36,  and  same  case  more  fully  reported  in  6  Mod.  161. 

It  will  not  escape  the  student's  notice  that  the  principal  case  misstates  the 
nature  and  measure  of  recovery  in  such  cases.  The  following  passage  from 
Nash  V.  Towne  (1866)  5  Wall.  689,  701-02,  is  as  accurate  as  it  is  concise: 

"Where  the  seller  of  goods  received  the  purchase-money  at  the  agreed  price, 
and  subsequently  refused  to  deliver  the  goods,  and  it  appeared  at  the  trial  that 
he  had  converted  the  same  to  his  own  use,  it  was  held  at  a  very  early  period 
that  an  action  for  money  had  and  received  would  lie  to  recover  back  the  money, 
and  it  has  never  been  heard  in  a  court  of  justice  since  that  decision  that  there 
was  any  doubt  of  its  correctness.  Anonymous,  1  Strange,  407 ;  2  Greenleaf  on 
Evidence,  124. 

"Assumpsit  for  money  had  and  received  is  an  equitable  action  to  recover 
back  money  which  the  defendant  in  justice  ought  not  to  retain,  and  it  may  be 
said  that  it  lies  in  most,  if  not  in  all,  cases  where  the  defendant  has  money  of 
the  plaintiff  which,  ex  aequo  et  bono,  he  ought  to  refund.  Counts  for  money 
had  and  received  may  be  joined  with  special  counts;  and  where,  as  in  this  case, 
the  special  counts  are  for  damages  for  the  non-delivery  of  goods,  it  is  perfectly 
competent  for  the  plaintiff,  if  the  price  was  paid  in  money  or  money's  worth, 
to  prove  the  allegations  of  the  special  counts  and  introduce  evidence  to  sup- 
port the  common  counts;  and  if  it  appears  that  the  defendant  refused  to  de- 
liver the  goods,  and  that  he  has  converted  the  same  to  his  own  use,  the  plain- 
tiff, at  his  election,  may  have  damage  for  the  non-delivery  of  the  goods,  or  he 
may  have  judgment  for  the  price  paid  and  lawful  interest.  Evidence  in  this 
case  was  clear  not  only  that  the  plaintiffs  paid  the  price  in  money,  but  that  the 
defendants  refused  to  deliver  the  (lour,  and  converted  the  same  to  their  own  use, 
by  selling  and  delivering  it  lo  other  persons.  Allen  v.  Ford,  19  Pickering,  217; 
Jones  V.  Hoar.  5  id.  285." — Ki). 

'See  two  adiiiirabh-  articles  l)y  Samuel  Williston  on  the  Rejjudiation  of 
Contracts  (14  Harv.  L.  Rev.  317-331;  421-441),  upon  the  te.vt  and  notes  to 
which  the  present  section  is  largely  based.  At  page  318,  note  1,  Mr.  Williston 
says:  '"The  earliest  cases  allowing  an  iict  ion  for  restitution  against  a  defendant 
guilty  of  breach  of  contract,  and  who  might  have  iieen  sued  on  the  contract  for 
damages,  are  Dutch  v.  Warren,  I  Str.  406,  and  Anonymous,  1  Str.  407,  decided 


CHAP.    II.]  TOWERS   V.    BARRETT.  715 

TOWERS  V.  BARRETT. 

King's  Bench,  1786. 

[1  Term  Reports,  133.] 

Action  for  money  had  and  received,  and  for  money  paid,  laid  out, 
and  expended. 

On  the  trial  of  this  cause  before  Lord  Mansfield,  at  the  sittings 
at  Westminster  after  last  Michaelmas  term,  it  appeared  that  this  suit 
was  instituted  by  the  plaintiff  to  recover  ten  guineas,  which  he  had 
paid  to  the  defendant  for  a  one-horse  chaise  and  harness,  on  con- 
dition to  be  returned  in  case  the  plaintiff's  wife  should  not  approve 
of  it,  paying  3s.  6d.  per  diem  for  the  hire  of  it.  This  contract  was 
made  by  the  defendant's  servant,  but  his  master  did  not  object  to 
it  at  the  time.  The  plaintiff's  wife  not  approving  of  the  chaise,  it 
was  sent  back  at  the  expiration  of  three  days,  and  left  on  the  defend- 
ant's premises,  without  any  consent  on  his  part  to  receive  it ;  the 
hire  of  3s.  6d.  per  diem  was  tendered  at  the  same  time,  which  the 
defendant  refused,  as  well  as  \o  return  the  money .^ 

Lord  Mansfield,  C.  J.  I  am  a  great  friend  to  the  action  for  money 
had  and  received;  it  is  a  very  beneficial  action,  and  founded  on  prin- 
ciples of  eternal  justice. 

In  support  of  that  action,  I  said  in  the  case  of  Weston  v.  Downes, 
that  I  would  guard  against  all  inconveniences  which  might  arise  from 
it,  particularly  a  surprise  on  the  defendant;  as  where  the  demand 
arises  on  a  special  contract,  it  should  be  put  on  the  record.  But  I 
have  gone  farther  than  that ;  for  if  the  parties  come  to  trial  on  another 
ground,  though  there  happen  to  be  a  general  count  for  money  had 
and  received,  I  never  suffer  the  defendant  to  be  surprised  by  it,  unless 
he  has  had  notice  from  the  plaintiff  that  he  means  to  rely  on  that  as 
well  as  the  other  ground. 

But  consistently  with  that  guard,  I  do  not  think  that  the  action 
can  be  too  much  encouraged.  Here  there  is  no  pretence  of  a  surprise 
on  the  defendant ;  Jiere  was  no  other  question  to  be  tried.  The 
defendant  knew  the  whole  of  the  matter  in  dispute  as  well  as  the 
plaintiff.     On  what  ground  can  it  be  said  that  this  is  not  money  paid 

in  1721 ;  but  in  the  first  of  these  decisions,  though  the  action  was  in  form  for 
restitution,  the  plaintiffs'  damages  were  restricted  to  the  value  of  what  he 
ought  to  have  received  by  the  contract.  No  general  recognition  of  a  right  to 
restitution  as  a  remedy  for  brcacli  of  contract  existed  prior  to  decisions  of 
Lord  Mansfield  and  Lord  Kenyon  at  the  end  of  the  eigliteenth  century." — Ed. 

'The  arguments  of  the  counsel  are  omitted.  They  relied  principally 
upon  Power  v.  Wells  (1778)  Cowp.  818;  Weston  v.  Downes  (1778)  1  Dougl. 
23;  Moses  v.  Macferlan   (17(50)   2  Burr.  1005,  aiite  p.  4.— Ed. 


716  TOWERS   V.   BARRETT.  [BOOK    II. 

to  the  plaintifT's  use?  The  defendant  has  got  his  chaise  again,  and, 
notwithstanding  that,  he  keeps  the  money. 

The  case  was  well  put  by  Mr.  J.  Asii hurst  in  Weston  v.  Downes, 
and  I  think  this  is  exactly  like  that.  I  was  of  opinion  at  the  trial 
that  this  action  would  lie;  and  I  still  continue  of  that  opinion. 

WiLLES,  J.  The  only  difficulty  is  to  distinguish  this  case  from, 
that  of  Weston  v.  Downes;  and  I  think  it  differs  from  that  on  two 
grounds. 

That  was  an  absolute,  this  a  conditional  agreement.  And  another 
more  material  difference  is,  that  this  agreement  was  at  an  end ;  the 
contract  was  no  longer  open. 

Tn  the  case  of  Weston  v.  Downes,  Mr.  J.  Buller  said,  "This  action 
will  not  lie,  as  the  defendant  has  not  precluded  himself  from  entering 
into  the  nature  of  the  contract,  by  taking  back  the  last  pair  of  horses." 
But,  in  the  present  case,  the  defendant  has  precluded  himself  by 
taking  back  the  chaise.     I  think  the  verdict  is  right. 

AsiiiiURST,  J.  This  action  is  maintainable;  for  it  is  different  from 
the  cases  of  Weston  v.  Downes  and  Power  v.  Wells.  The  latter  was 
merely  a  case  of  warranty.  In  these  actions  the  party  cannot  desert 
the  warranty  and  resort  to  the  general  court,  because  the  warranty  it- 
self is  one  of  the  facts  to  be  tried. 

As  to  that  of  Weston  v.  Downes:  on  the  first  contract  there  was  an 
agreement  to  take  back  the  horses,  provided  they  were  returned  witliin 
a  month :  that  would  have  been  like  tlie  present  case,  if  they  had  been 
returned  within  that  time;  but  there  was  an  end  of  the  first  contract, 
for  the  plaintiff  took  a  second,  and  then  a  third  pair  of  horses:  that 
was  a  new  contract,  not  made  on  the  terms  of  the  first,  and  that  is 
distinguishable  from  the  present  case. 

But  hiying  that  determination  out  of  the  question,  tliis  is  like  the 
common  cases  where  either  party  puts  an  end  to  a  conditional  agree- 
ment. Here  the  condition  was  to  return  the  chaise  if  not  approved 
of;  therefore,  the  moment  it  was  returned  the  contract  was  at  an 
end,  and  the  defendant  held  the  money  against  conscience  and  with- 
out consideration. 

Buller,  J.  On  the  very  principle  in  Weston  v.  Downes  and  Power 
V.  Wells,  whieh  determined  that  the  action  for  money  had  and  received 
would  not  lie  in  those  cases,  it  is  clear  that  this  action  will  lie. 

It  is  admitted  that  if  the  defend;) nt  luid  actually  accepted  the 
chaise  the  action  would  lie;  but  it  has  been  contended  that  he  did 
not  n^eeive  it.  '^Dien  let  ns  see  whether  there  be  not  something  erpiiva- 
lent  to  an  acceptance?  I  think  tliere  is,  from  the  terms  of  the  con- 
tract. There  was  nothing  more  to  be  done  by  the  defendant;  for  he 
left  it  in  the  power  of  the  plaintiff  to  put  an  end  to  the  contract.  Hero 
it  was  not  in  his  option  to  refuse  the  cliaise  when  it  was  offered  to  him  ; 
he  was  bound  to  receive  it,  and  tiierefore  it  is  the  same  as  if  he  had 
accepted  it. 


CHAP.    II.]  TOWERS    V.    BARRETT.  717 

The  distinction  between  those  cases  where  the  contract  is  open, 
and  where  it  is  not  so,  is  this:  if  the  contract  be  rescinded,  either, 
as  in  this  case,  by  the  original  terms  of  the  contract,  where  no  act 
remains  to  be  done  by  the  defendant  himself,  or  by  a  subsequent 
assent  by  the  defendant,  the  plaintiff  is  entitled  to  recover  back  his 
whole  money ;  and  then  an  action  for  money  had  and  received  will 
lie.^  But  if  the  contract  be  open,  the  plaintiff's  demand  is  not  for  the 
whole  sum,  l)ut  for  damages  arising  out  of  that  contract. "-^ 

'"In  order  to  constitute  a  title  to  recover  for  money  had  and  received,  the 
contract  on  the  one  side  must  not  only  not  be  performed  or  neglected  to  be 
performed,  but  there  must  have  been  something  equivalent  to  saying,  'I  rescind 
this  contract' — a  total  refusal  to  perform  it,  or  something  equivalent  to  that 
which  would  enable  the  plaintiff  on  his  side  to  say,  'If  you  rescind  the  con- 
tract on  your  part,  I  will  rescind  it  on  mine.'  That  principle  is  laid  down 
and  very  well  enforced  in  a  variety  of  cases  which  were  cited,  and  which  will 
be  found  in  Smith's  Leading  Cases,  vol.  2,  in  the  note  to  the  case  of  Cutter 
V.  Powell,"  per  Parke,  B.,  in  Ehrensperger  v.  Anderson    (1848)    3  Ex.   148. 

This  case  seems  to  represent  the  English  law  on  the  subject  of  repudia- 
tion, and  is  cited  in  Keener  on  Quasi-Contracts,  304,  as  a  correct  exposi- 
tion of  the  law.  Freeth  v.  Burr  (1874)  L.  R.  9  C.  P.  208,  214;  Mersey  Steel 
and  Iron  Co.  v.  Naylor  (1884)  9  App.  Cas.  434,  438.  See  also  Fay  v.  Oliver 
(1848)   20  Vt.  118,  122. 

"In  some  American  cases,  also,  it  has  been  said  that  mere  breach  of  contract 
does  not  justify  rescission,  unless  an  intention  is  manifested  to  be  no  longer 
bound  by  the  contract,  or  unless  the  wrongdoer  has  prevented  performance  by 
the  other  party.  Wright  v.  Haskell,  45  Me.  489  (see,  also,  Dixon  v.  Fridette,  81 
Me.  122)  ;  Blackburn  v.  Reilly,  47  N.  J.  L.  290;  Trotter  v.  Heckscher,  40  N.  J. 
Eq.  612;  Graves  v.  White,  87  N.  Y.  463;  Hubbell  v.  Pacific  Mut.  Ins.  Co.  100 
N.  Y.  41,  47  (Comp.  Bogardus  v.  N.  Y.  Life  Ins.  Co.  101  N.  Y.  328)  ;  Suber 
V.  Pullen,  1  S.  C.  273."  Williston,  1.  c.  324.  But  see  in  regard  to  New  York, 
Welsh  V.  Gossler  (1882)  89  N.  Y.  540;  Hill  v.  Blake  (1884)  97  N.  Y.  216; 
Mansfield  v.  N.  Y.  Central  E,.  R.  Co.   (1886)   102  N.  Y.  205. 

"This  doctrine,  though  perhaps  it  is  that  of  the  English  law  to-day,  must 
be  regarded  as  erroneous  in  principle  and  unfortunate  in  practice.  It  seems  to 
be  based  in  large  part  on  the  notion  that,  in  order  to  justify  such  a  rescission 
of  the  contract,  mutual  assent  of  the  parties  must  be  established — and  offer  by 
the  party  in  default  accepted  by  the  other  party.  In  almost  any  case  thia 
can  be  established  only  by  resorting  to  the  baldest  fiction.  ...  In  truth 
rescission  is  imposed  in  invitum  by  the  law  at  the  option  of  the  injured  party, 
and  it  should  be,  and  in  general  is,  allowed  not  only  for  repudiation  or  total 
inability,  but  also  for  any  breach  of  contract  of  so  material  and  substantial 
nature  as  should  constitute  a  defence  to  an  action  brought  by  the  party  in  de- 
fault for  a  refusal  to  proceed  with  the  contract." 

Williston,  1.  e.  323-325,  and  note  2,  in  which  numerous  authorities  are 
cited. — Ei). 

-In  Goodman  v.  Pocock  (1850)  15  Q.  B.  576,  the  plaintiff,  a  clerk,  dismissed 
in  the  middle  of  a  quarter,  brought  an  action  for  a  wrongful  dismissal,  the 
declaration  containing  a  special  count  for  such  dismissal.  The  jury  were 
directed  not  to  take  into  account  the  services  actually  rendered  during  the 


718  TOWERS    V.    BARRETT.  [bOOK    II. 

In  a  late  case  before  me  on  a  warranty  of  a  pair  of  horses  to 
Dr.  Compton  that  they  were  five  years  old,  when  in  fact  they  turned 
out  to  be  only  four,  and  they  were  not  returned  within  a  certain  time, 
I  held  that  if  the  plaintiff  would  rescind  the  contract  entirely  he 
must  do  it  within  a  reasonable  time,  and  that  as  he  had  not  rescinded 
the  contract  he  could  only  recover  damages;  and  then  the  question 
was,  what  was  the  difference  of  the  value  of  horses  of  four  or  five 
years  old? 

So  that  the  difference  in  cases  of  this  kind  is  this :  where  the 
plaintiff  is  entitled  to  recover  his  whole  money,  he  must  show  that 
the  contract  is  at  an  end ;  but  if  it  continue  open,  he  can  only  recover 
damages,  and  then  he  must  state  the  special  contract  and  the  breach 
of  it. 

Rule  discharged.^ 

broken  quarter,  as  they  were  not  recoverable  except  tinder  an  indebitatus  count; 
and  they  fjave  damages  accordingly.  The  plaintiff  then  brought  a  second  action 
to  recover  under  an  indebitatus  count  for  his  services  during  the  broken 
quarter.  In  denying  a  recovery,  Coleridge,  J.,  said:  "In  a  case  like  this  the 
servant  may  either  treat  the  contract  as  rescinded  and  bring  indebitatus  as- 
sumpsit, or  he  may  sue  on  the  contract;  but  he  cannot  do  both;  and,  if  he  has 
two  counts,  he  must  take  the  verdict  on  one  only.  Here  the  plaintiff  elected 
to  sue  on  the  contract;  and  he  cannot  now  sue  in  this  form." 

For  the  various  inconsistencies  in  the  nature  of  the  recovery  where  the 
contract  has  been  rescinded  or  repudiated,  see  Williston,  1.  c.  329-30  (where 
the  cases  are  collected)  ;  Keener's  Treatise  on  Quasi-Contracts,  306. 

For  the  Roman  and  the  modern  civil  law  remedy  in  such  cases,  see  Williston 
on  Dependency  of  Mutual  Promises,  13  Harv.  L.  R.  84,  85,  94-95. — Ed. 

*"If  a  party  to  a  contract  has  paid  money  and  the  other  party  has  wholly 
failed  to  perform  on  his  part,  restitution  may  be  had  in  England  (Towers  v. 
Barrett,  1  T.  R.  133;  Giles  v.  Edwards,  7  T.  R.  181;  Farrer  v.  Nightingal,  2 
Esp.  639;  Widdle  v.  Lyman,  Peake,  A.  C.  30;  Greville  v.  Da  Costa,  Peake, 
A.  C.  113;  Squire  v.  Tod,  1  Camp.  293;  Wilde  v.  Fort,  4  Taunt.  334;  Bartlett  v. 
Tuchin,  6  Taunt.  259;  Gosbell  v.  Arche'r,  4  N.  &  M.  485.  So  in  the  colonies, 
Wrayton  v.  Naylor,  24  S.  C.  Canada,  295;  Wolff  v.  Pickering,  12  S.  C.  Cape 
of  Good  Hope,  429,  432),  and  in  this  country  (Nash  v.  Towne,  5  Wall.  G89; 
Lyon  V.  Annable,  4  Conn.  350;  Thresher  v.  Stonington  Bank,  68  Conn.  201 ;  Barr 
V.  Logan,  5  Harr.  (Del.)  52;  Payne  v.  Pomeroy,  21  D.  C.  243;  Trinkle  v. 
Reeves,  25  111.  214;  German,  etc.  Assoc,  v.  Droge,  14  Ind.  Abb.  691;  Wilhelm 
V.  Fimple,  31  la.  131;  Doherty  v.  Dolan,  65  Me.  87;  Ballon  v.  Billings,  136 
Mass.  307;  Dakota,  etc.  Co.  r.  Price,  22  Neb.  96;  Weaver  r.  Bentley,  1  Caines, 
47;  Cockroft  v.  MuIIcr,  71  N.  Y.  367;  Glenn  v.  Rossler,  88  Hun,  74:  Wilkin- 
son V.  Ferreo,  24  Pa.  190)  ;  Williston.  1.  c.  318-319. 

In  Western  v.  Sharp  ( 1853)  14  B.  Mon.  177,  the  court  suggests  a  distinction 
(as  to  a  recovery  on  a  quantum  meruit  for  services  performed  on  a  contract, 
the  defendant  defaulting)  iK'tween  sealed  and  unsealed  instruments,  saying: 
"The  general  rule  lias  been,  that  where  there  is  a  special  agreement,  the  action 
must  be  founded  u)>on  it,  and  that  there  can  be  no  recovry  upon  a  quantum 
meruit,  r)r  implied  agreement,  unless,  by  some  default  on  the  part  of  the  plain- 


CHAP.    II.]       CHESAPEAKE   AND   OHIO    CANAL    CO.    V.    KNAPP,  719 

THE   CHESAPEAKE   &   OHIO   CANAL   COMPANY,   PLAIN- 
TIFFS IN  EKROR  V.  KNAPP  AND  OTHERS. 

Supreme  Court  of  the  United  States,  1835. 

[9  Peters,  541.] 

In  error  to  the  Circuit  Court  of  the  United  States  for  the  county  of 
Washington,  in  the  District  of  Columbia. 

This  was  an  action  of  assumpsit,  instituted  originally  in  the  County 
Court  of  Montgomery  county,  in  the  state  of  Maryland ;  and  by  agree- 
ment of  the  parties  transferred,  with  all  the  pleadings,  depositions, 
and  other  proceedings  therein,  to  the  Circuit  Court  of  the  United 
States  for  the  county  of  Washington,  in  the  District  of  Columbia.^ 

Mr.  Justice  M'Lean  delivered  the  opinion  of  the  Court. 

This  case  is  brought  before  this  Court,  by  writ  of  error  to  the  Cir- 
cuit Court  for  the  District  of  Columbia. 

The  defendants  here,  who  were  plaintiffs  in  the  Circuit  Court, 
commenced  an  action  of  assumpsit  to  recover  a  large  sum  alleged  to 
be  due,  for  the  construction  of  certain  locks,  &c.,  from  the  Chesapeake 
and  Ohio  Canal  Company ;  and  filed  their  declaration,  containing  nine 
general  counts  of  indebitatus  assumpsit,  for  work  done  and  materials 
found,  money  laid  out  and  expended,  on  account  stated,  &c. ;  and  the 
defendants,  pleaded  the  general  issue.  On  the  trial,  several  excep- 
tions were  taken  to  the  ruling  of  the  Court,  by  the  plaintiffs;  and 
one  exception  was  taken  by  the  defendants,  which  presents  the  points 
for  decision  on  the  present  writ  of  error. 

The  following  is  the  instruction  referred  to.  "In  the  further  trial 
of  this  cause,  and  after  the  evidence  and  instructions  stated  in  the 

tiff,  he  is  precluded  from  recovering  on  the  special  agreement,  when,  if  he  could 
not  recover  upon  a  quantum  meruit,  he  would  be  without  remedy,  whatever 
might  be  the  extent  of  the  labor  done  by  him  for  the  other  party,  or  of  the 
benefit  derived  from  it.  In  such  case,  however,  the  recovery  for  work  done 
under  the  contract  would  be  limited  to  the  contract  price. 

"The  rule,  as  above  stated,  requires  that  when  the  action  can  be  maintained 
on  the  special  agreement  it  should  be  founded  upon  it;  and  this  rule  is  still 
more  imperative  and  more  important  where,  as  in  the  present  case,  the  special 
agreement  is  in  writing,  signed  by  the  parties,  and  having  the  character  and 
dignity  of  a  sealed  instrument.  Such  an  agreement  merges  the  verbal  contract 
of  which  it  takes  the  place,  and  it  admits  of  no  implied  contract  covering 
the  same  subject,  unless  when,  according  to  the  r\iles  of  law,  there  is  no 
remedy  upon  the  written  agreement,  when  in  order  that  there  may  be  a 
remedy  such  contract  is  implied  as  justice  and  reason  dictates." 

But  this  distinction  was  not  taken  in  American  T.ifc  Ins  Co.  v.  j\Ic.\den 
(1885)  109  Pa.  St.  399.  And  the  better  doctrine  is  tliat  no  such  distinction 
exists  in  the  nature  of  things.  See  Ballou  v.  Billings  (1884)  136  Mass.  307, 
per  Holmes,  J.  And  see  Williston,  1.  e.  328;  Keener's  Quasi-Contracts, 
308.— Ed. 


720  CHESAPEAKE    AND    OHIO    CANAL    CO.    V    KNAPP.        [BOOK    II. 

preceding  bills  of  exceptions  had  been  given,  and  after  evidence 
offered  by  the  plaintiffs,  of  the  payment  of  moneys  to  the  labourers 
for  the  time  during  the  detention,  occasioned  by  the  want  of  cement 
on  locks  5  and  6,  the  plaintiffs,  by  their  counsel,  prayed  the  Court 
to  instruct  the  jury,  that  if  the  jury  believe,  from  the  said  evidence, 
that  the  defendants  had,  on  the  2d  of  September,  1829,  and  from 
that  time  till  the  20th  day  of  January,  1830,  contracted  with  the 
plaintiffs  to  furnish  them  with  cement  necessary,  &c.,  in  due  time,  &c., 
and  that  the  plaintiffs,  expecting  that  sufficient  supplies  of  cement  to 
go  on  with  the  work  would  be  furnished  by  the  defendants,  as  de- 
fendants had  so  engaged  to  do,  hired  a  large  number  of  hands,  and 
brought  them  to  the  locks;  and  when  the  defendants  had  so  failed 
to  furnish  the  cement,  kept  the  same  hands  idle,  waiting  for  cement, 
on  the  defendants'  desire  that  they  should  do  so  in  order  to  be  ready 
to  go  on  with  the  work ;  and  paid  them  their  wages  while  so  waiting : 
then  the  plaintiffs  are  entitled,  under  the  count  for  money  laid  out 
and  expended,  contained  in  the  declaration,  to  recover  the  money  so 
paid  to  said  hands,  during  such  periods.  But  that  the  plaintiffs  are 
not  entitled  to  recover  for  wages  paid  to  their  workmen,  on  account 
of  a  deficiency  of  cement,  after  the  said  20th  day  of  January,  1830, 
unless  the  jury  shall  be  satisfied  by  the  said  evidence,  that  the  said 
resolution  of  the  board  of  directors,  of  the  20th  of  January,  1830,  was 
rescinded  by  the  said  board,  and  a  new  contract  entered  into  there- 
after by  the  defendants,  to  furnish  cement  to  the  plaintiffs,  and  the 
subsequent  failure  on  their  part  so  to  furnish  it,  and  an  agreement 
also  to  pay  for  the  wages  of  the  plaintiffs'  workmen  while  so  wait- 
ing," &c. 

The  resolution  referred  to  in  the  bill  of  exceptions,  is  in  the  words 
following : 

"Resolution  of  the  Board  of  Directors  of  the  Canal  Company  in 
meeting,  January  20th,  1830.  Resolved,  that  although  this  board  has 
stipulated  to  supply  the  contractors  with  water  lime,  yet  the  board 
will  not  be  held  responsible  for  any  damages  arising  from  the  want 
of  that  article." 

But  the  ground  on  which  some  reliance  seems  to  be  placed  for  the 
reversal  of  this  judgment,  and  which,  in  the  view  of  the  Court,  is  one 
of  the  principal  points  [)resenti'd  by  the  record,  is,  that  the  jury  were 
instructed  to  find  for  the  plaintiffs  l)elow,  on  proof  of  a  special  con- 
tract, and  under  a  declaration  containing  only  general  counts. 

By  the  instruction  of  the  Court,  if  the  jury  found,  from  the  ev'- 
dencf,  that  the  eontrfict  had  been  made  liy  the  defendants,  as  stated, 
and  that  the  money  had  been  paid  to  the  liands  dc^tained  for  want 
of  cement,  the  plaintiffs  were  entitled  to  a  verdict  on  the  count  for 
money  laid  out  and  expended. 

There  can  be  no  doubt,  that  wlicre  tlic  special  contract  remain-^ 
open,  the  plaintiff's  remedy  is  on  the  contract;  and  he  must  set  it 


CHAP.    II.]       CHESAPEAKE    AXD    OHIO    CANAL    CO.    V.    KNAPP.  721 

forth  specially  in  his  declaration.  But  if  the  contract  has  been  put 
an  end  to,  the  action  for  money  had  and  received,  lies  to  recover  any 
payment  that  has  been  made  under  it.  The  case  of  Towers  v.  Barrett, 
1  Term  Kep.  133,  illustrates  very  clearly  and  fully  this  doctrine.  In 
that  case,  the  plaintiff  recovered,  on  a  count  for  money  had  and  re- 
ceived, ten  guineas  paid  to  the  defendant  for  a  one  horse  chaise  and 
harness,  which  were  to  be  returned  on  condition  the  plaintiff's  wife 
should  not  approve  of  the  purchase,  paying  three  shillings  and  six 
pence  per  diem  for  the  hire,  should  they  be  returned :  and  as  the  plain- 
tiff's wife  did  not  approve  of  the  purchase,  they  were  returned,  and 
the  hire  was  tendered  at  the  same  time.  "But  if  the  contract  remain 
open,  the  plaintiff's  demand  for  damages  arises  out  of  it,  and  then  he 
must  state  the  special  contract,  and  the  breach  of  it." 

It  is  a  well  settled  principle,  where  a  special  contract  has  been  per- 
formed, that  a  plaintiff  may  recover  on  the  general  counts.  This  prin- 
ciple is  laid  down  by  this  Court,  in  the  case  of  the  Bank  of  Columbia 
V.  Patterson's  Administrators,  7  Cranch,  299,  2  Cond.  Rep.  501.  In 
that  case,  the  Court  say:  "we  take  it  to  be  incontrovertibly  settled, 
that  indebitatus  assumpsit  will  lie  to  recover  the  stipulated  price  due 
on  a  special  contract  not  under  seal,  where  the  contract  has  been  exe- 
cuted ;  and  that  it  is  not,  in  such  case,  necessary  to  declare  upon  the 
special  agreement." 

It  would  be  difficult  to  find  a  case  more  analogous  in  principle  to 
the  one  under  consideration,  than  the  above.  The  same  questions,  as 
to  the  right  of  the  plaintiff  to  recover  on  the  general  counts,  where 
the  special  agreement  was  performed ;  and,  also,  as  to  the  powers  of  a 
corporation  to  bind  itself,  through  the  instrumentality  of  agents; 
were  raised  and  decided  in  that  case,  as  are  made  in  this  one.  And 
it  would  seem,  where  this  Court  had  decided  the  point  in  controversy, 
and  which  decision  had  never  afterwards  been  controverted,  that  the 
question  is  not  open  for  argument.  But  whether  this  doctrine 
be  considered  as  established  by  the  adjudications  of  this  Court,  or  the 
sanction  of  other  Courts,  it  is  equally  clear  that  no  principle  involved 
in  the  action  of  assumpsit,  can  be  maintained  by  a  greater  force  of 
authority. 

In  1  Bacon's  Ab.  380,  it  is  laid  down,  that  "wherever  the  considera- 
tion on  the  part  of  the  plaintiff  is  executed,  and  the  thing  to  l)e  done 
on  the  defendant's  part,  is  mere  payment  of  a  sum  of  money  due  im- 
mediately; or  where  money  is  paid  on  a  contract  which  is  rescinded, 
so  that  the  defendant  has  no  right  to  retain  it;  this  constitutes  a  debt 
for  which  the  plaintiff  may  declare  in  the  general  count;  on  an  in- 
debitatus assumpsit.  Anciently,  the  count  in  such  cases  was  special, 
stating  the  consideration  as  executory,  the  promise,  the  plaintiff's  per- 
formance, and  the  defendant's  breach ;  but  the  indebitatus  has  grown, 
by  degrees,  into  use." 

"So  also  if  goods  are  sold  and  actually  delivered  to  the  defendant, 


723  CHESAPEAKE    AXD    OHIO    CANAL    CO.    V.    KXAPP.  [BOOK    II. 

the  price,  if  due  in  money,  may  be  recovered  on  this  count;  and  this 
though  the  price  is  settled  by  third  parties."  1  Bos.  and  Pull.  397; 
12  East,  1.  "Where  the  plaintilT  let  to  the  defendant  land  rent  free, 
on  condition  that  the  plaintiff  should  have  a  moiety  of  the  crops;  and 
while  the  crop  of  the  second  year  was  on  the  ground,  it  was  appraised 
for  both  parties  and  taken  by  defendant :  it  was  held  that  the  plaintiff 
might  recover  his  moiety  of  the  value  in  indebitatus  assumpsit,  for 
crops,  &c.,  sold :  for  by  the  appraisement,  the  special  agreement  was 
executed,  and  a  price  fixed  at  which  the  defendant  bought  the  plain- 
tiff's moiety." 

The  same  principle  is  found  in  Helps  and  another  v.  Winterbottom, 
2  B.  and  A.  431;  Brooke  v.  White,  1  New  Rep.  330;  Robson  v.  God- 
frey, Holt,  236;  Heron  v.  Gronger,  5  Esp.  2(59;  Ingram  v.  Shirl(\y, 
1  Stark.  185;  Forsyth  v.  Jervis,  1  Stark.  437;  Harrison  v.  Allen, 
9  Moore,  28 ;  Bailey  v.  Gouldsmith,  Peake,  56 ;  Gandall  v.  Pontigny, 

1  Stark.  198;  Farrar  v.  Nightingale,  2  Esp.  639;  Riggs  v.  Lindsay, 
7  Cranch,  500,  2  Cond.  Rep.  585;  James  et  al.  v.  Cotton,  7  Bing.  266; 
Administrators  of  Foster  v.  Foster,  2  Binn.  4;  Lkyes  v.  Summcrel, 

2  Browne,  227. 

As,  by  the  instruction  of  the  Court,  the  jury  must  have  found  the 
contract  executed  by  the  plaintiffs  below,  before  they  rendered  a  ver- 
dict in  their  favour ;  we  think  the  question  has  been  settled  by  the  ad- 
judged cases  above  cited;  and  that  on  this  point  there  is  no  error  in 
the  instruction  of  the  Court. 

But  it  is  insisted,  that,  in  their  instruction,  the  Court  lay  down 
certain  facts,  as  proved,  which  should  have  been  left  to  the  jury.  If 
this  objection  shall  be  sustained,  by  giving  a  fair  construction  to  the 
language  of  the  Court,  the  judgment  must  be  reversed ;  for  the  facts 
should  be  left  with  tlie  jury,  whose  peculiar  province  it  is  to  weigh  the 
evidence,  and  say  what  effect  it  shall  have.^ 

This  cause  came  on  to  be  heard  on  the  transcript  of  the  record  from 
the  Circuit  Court  of  the  United  States  for  the  District  of  Colunil)ia, 
holden  in  and  for  the  county  of  Washington,  and  was  argued  l)y 
counsel ;  on  consideration  whereof,  it  is  ordered  and  adjudged  by  this 
Court,  that  the  judgment  of  the  said  Circuit  Court' in  this  cause  be, 
and  the  same  is  hereby,  afTirmed,  with  costs  and  damages  at  the  rate 
of  six  per  centum  per  annum. - 

'The  l)alance  of  the  oi)iiiif)n  of  tlio  ccmit  (Iciiliiif;  with  this  question  is  omit- 
ted.—Ed. 

'See  note  on  the  princiiial  raso  in  .'{  Rose's  Notes  on  U.  S.  Reports,  .'j2.'5,  526, 
in  which  the  varioua  authorities,  Federal  and  State,  arc  collected. — Ed. 


CHAP.    II.]  MINER   V.    BRADLEY.  733 

MINEE  V.  BKADLEY. 

Supreme  Judicial  Court  of  Massachusetts,  1839. 

[22  Pickering,  457.] 

Morton,  J.,  drew  up  the  opinion  of  the  Court.  This  action,  in 
which  the  plaintiff  declares  for  money  had  and  received  and  money 
paid,  was  brought  to  recover  back  the  price  paid  for  a  quantity  of 
hay.  The  cause  was  tried  in  the  Court  of  Common  Pleas.  The  facts 
upon  which  the  plaintiff  claimed  to  recover  were  as  follows :  The  de- 
fendant, among  other  things,  put  up  at  auction  a  certain  cow  and  400 
pounds  of  hay,  which  was  then  in  a  bay  with  other  hay.  The  plain- 
tiff bid  off  the  cow  and  the  hay  for  $17,  which  he  paid  at  the  time. 
He  then  received  the  cow,  and  afterwards  demanded  the  hay,  which 
was  refused  by  the  defendant,  who  had  used  it.  The  defendant  ob- 
jected to  the  plaintiff's  recovery,  on  the  ground  that  this  was  an  entire 
contract;  that  the  plaintiff  could  not  recover  back  the  price  paid,  or 
any  portion  of  it,  without  rescinding  the  whole  contract,  and  that 
this  could  not  be  done  without  returning  the  cow.  But  the  court  over- 
ruled the  objection,  and  instructed  the  jury,  that  upon  the  fore- 
going facts,  if  proved,  the  plaintiff  was  entitled  to  recover  a  sum  equal 
to  the  value  of  the  hay. 

Upon  the  above  statement,  there  can  be  no  doubt,  that  in  a  proper 
form  of  action,  the  plaintiff  might  recover  for  the  injury  sustained 
by  him,  by  the  defendant's  refusal  to  deliver  the  hay.  But  whether 
this  action  can  be  maintained,  is  the  question  now  distinctly  presented 
for  our  determination.  It  is  to  be  regretted,  that  the  plaintiff's  claim 
must  be  decided  upon  mere  matters  of  form,  without  regard  to  its 
merits.  But  still,  with  all  the  laxity  in  pleading  which  the  liberality 
of  the  legislature  and  the  courts  has  introduced  into  modern  prac- 
tice, some  regard  must  be  had  to  establish  usages  and  forms.  We 
cannot  break  down  the  well  known  distinctions  between  different 
modes  of  declaring,  without  endangering  the  principles  of  justice 
upon  which  they  are  founded.  Had  the  plaintiff  declared  upon  his 
contract  for  the  purchase  of  the  cow  and  the  hay,  he  might  have  tried 
his  case  upon  its  merits.  But  having  adopted  a  different  form  of  ac- 
tion, he  must  rely  upon  different  principles  for  its  support. 

The  general  rules  of  law  upon  which  this  case  mainly  depends,  are 
well  settled  and  familiar.  This  action  is  adapted  to  the  repetition  of 
all  money  paid  by  mistake  or  misapprehension  of  facts,  or  upon  a 
contract  for  the  purchase  of  property,  either  real  or  personal,  where 
the  consideration  fails.  If  nothing  passes,  the  purchaser  may  rescind 
the  contract  and  recover  back  the  money  paid,  and  is  not  obliged  to 
resort  to  any  covenant  or  warranty,  either  express  or  implied.  \Mier- 
ever  a  contract  is  rescinded  according  to  the  original  terms  of  it,  the 


734  MIXER    v.    BRADLEY.  [BOOK    II. 

purchaser  may  well  recover  the  price  as  money  had  and  received  to 
his  use.  Towers  r.  Barrett,  1  T.  R.  133.  So  where  a  contract  is  de- 
feated by  the  negligence  or  misconduct  of  one  party,  the  other  may 
have  his  election  either  to  rescind  the  contract  and  recover  back  the 
purchase  money,  or  to  enforce  it,  and  recover  damages  for  its  breach. 
Giles  I'.  Edwards,  7  T.  R.  181.  But  if  a  party  would  rescind  a  con- 
tract, he  must  do  it  in  toto.  He  cannot  disclaim  it  in  part  and  enforce 
it  in  part.  So,  also,  the  party  rescinding  must  place  the  other  party 
in  statu  quo.  If  this  cannot  be  done,  the  contract  cannot  be  rescinded. 
Hence  if  the  contract  be  in  any  part  executed,  it  cannot  be  discarded. 
1  Dane's  Abr.  177,  187 ;  -t  Dane's  Abr.  471  ;  Hunt  v.  Silk,  5  East,  449 ; 
Kimball  v.  Cunningham,  4  Mass.  R.  502 ;  Conner  v.  Henderson, 
15  Mass.  R.  319. 

To  apply  these  principles,  which  the  plaintiff  himself  does  not  con- 
trovert, to  the  case  at  bar.  When  tlie  defendant  refused  to  deliver  the 
hay,  it  was  such  a  violation  of  the  contract  on  his  part,  as  would  have 
justified  the  plaintiff  in  rescinding  it.  And,  had  he  done  so,  he  would 
have  been  entitled  to  a  return  of  the  money  which  he  had  paid.  This, 
however,  he  could  only  do  by  restoring  the  defendant  to  the  situation 
he  was  in  before  the  contract,  viz.,  by  retui-ning  the  cow.  But  if 
he  chose  to  retain  her,  his  only  remedy  would  be  upon  the  special 
contract  for  damages  for  the  conversion  of  the  hay.  This  would  liave 
been  peculiarly  adapted  to  his  case,  and  would  have  done  exact  justice 
between  the  parties.  The  damage  which  the  plaintiff  sustained  by  the 
defendant's  breach  of  his  contract  might  be  more  or  less  than  the 
value  of  the  hay  or  the  price  which  might  be  supposed  to  be  paid  for  it ; 
and  he  would  recover  according  to  the  injury  suffered  by  him. 

Again,  as  the  cow  and  the  hay  were  bought  together  for  one  gross 
sum,  there  are  no  means  of  ascertaining  how  much  was  intended  for 
one,  and  how  much  for  the  other.  Indeed  it  is  not  probable  that  the 
parties  fixed  any  definite  price  to  the  articles  separately.  If  so,  it 
might  not  have  been  the  same;  and  as  there  was  no  intorchange  of 
opinions,  there  could  not  be  that  agreement  of  two  minds  which  con- 
stitutes a  contract.  There  being,  therefore,  no  price  agreed  upon  and 
paid  for  the  hay,  none  could  be  recovered  back.  The  value  of  the 
liav,  whicli  wouhl  be  dilTcrcntly  estimated  by  different  individuals, 
certainly  couhl  not  be  dccincd  the  measure  of  the  price.  In  this  action 
only  the  exact  amount  of  tin'  money  paid  can  be  recovered  back.  The 
plaintiff  argues,  that  this  contract  may  be  severed,  either  with  or  with- 
out the  consent  of  the  jiarties,  so  that  it  may  be  enforced  as  to  part 
and  rejected  as  to  another  part.  Here  is  nothing  tending  to  sliow  any 
agreement  to  divide  tlie  contrMct.  :is  it  applies  to  the  two  subjects.  So 
far  from  it,  that  the  defeiKbint  di'uies  that  the  hay  ever  was  included 
in  the  contract. 

There  may  be  cases,  where  a  legal  eoniract  of  sale  covering  sev- 
eral articles  may  be  severed,  so  that  the  purchaser  may  hold  souu'  of 


CHAP.    II.]  MINER   Vi    BRADLEY.  735 

the  articles  purchased,  and,  not  receiving  others,  may  recover  back  the 
price  paid  for  them.  Where  a  number  of  articles  are  bought  at  the 
same  time,  and  a  separate  price  agreed  upon  for  each,  although  they 
are  all  included  in  one  instrument  of  conveyance,  yet  the  contract, 
for  sufficient  cause,  may  be  rescinded  as  to  part,  and  the  price  paid  re- 
covered back,  and  may  be  enforced  as  to  the  residue.  But  this  can- 
not properly  be  said  to  be  an  exception  to  the  rule ;  because  in  effect, 
there  is  a  separate  contract  for  each  separate  article.  This  subject 
is  well  explained,  and  the  law  well  stated,  in  Johnson  v.  Johnson, 
3  Bos.  &  Pul.  162.  In  that  case  the  plaintiff  purchased  two  parcels  of 
real  estate,  the  one  for  £700,  the  other  for  £300,  and  took  one  con-i 
veyance  of  both.  But  the  title  to  the  latter  was  invalid,  and  he 
brought  his  action  to  recover  back  the  consideration  paid  for  it,  and 
prevailed.  Lord  Alvanley,  in  giving  the  judgment  of  the  court, 
said,  "My  difficulty  has  been  how  far  the  agreement  is  to  be  consid- 
ered as  one  contract,  for  the  purchase  of  both  sets  of  premises,  and 
how  far  the  party  can  recover  so  much  as  he  has  paid  by  way  of  con- 
sideration for  the  part  of  which  the  title  has  failed,  and  retain  the 
other  part  of  the  bargain."  "If  the  question  were,  how  far  the  part 
of  which  the  title  has  failed,  formed  an  essential  ingredient  of  the 
bargain,  the  grossest  injustice  would  ensue  if  a  party  were  suffered  to 
say  that  he  would  retain  all  of  which  the  title  was  good,  and  recover 
a  proportionable  part  of  the  purchase  money  for  the  rest.  Possibly 
the  part  which  he  retains,  might  not  have  been  sold  unless  the  other 
part  had  been  taken  at  the  same  time,  and  ought  not  to  be  valued  in 
proportion  to  its  extent,  but  according  to  the  various  circumstances 
connected  with  it."  "In  this  case,  however,  no  such  question  arises : 
for  it  appears  to  me,  although  both  pieces  of  ground  were  bargained 
for  at  the  same  time,  we  must  consider  the  bargain  as  consisting  of 
two  distinct  contracts;  and  that  the  one  part  was  sold  for  £300,  and 
the  other  for  £700." 

Had  the  plaintiff  bid  off  the  cow  at  one  price  and  the  hay  at  an- 
other, although  he  had  taken  one  bill  of  sale  for  both,  it  would  have 
come  within  the  principles  of  the  above  case.  But  such  was  not  the 
fact.  And  it  seems  to  us  very  clear,  that  the  contract  was  entire; 
that  it  was  incapable  of  severance;  that  it  could  not  be  enforced  in 
part  and  rescinded  in  part ;  and  that  it  could  not  be  rescinded  without 
placing  the  parties  in  statu  quo. 

We  think  some  confusion  has  been  thrown  over  this  contract  by 
likening  it  to  a  promissory  note,  which  may  be  enforced  in  part, 
though  the  consideration  fail  as  to  the  residue.  This  subject  was 
fully  discussed  in  Parish  v.  Stone,  14  Pick.  198.  The  principles  there 
laid  down,  Avhich  we  recognize  as  sound,  do  not.  in  anv  degree,  clash 
with  the  doctrine  above  stated.  The  cases  are  dissimilar.  The  object 
of  the  one  was  to  determine,  whether  a  contract  defective  in  part 
might  be  enforced  as  far  as  it  was  valid,  and  how  far  it  was  to  be 


726  CLARK   V.   MANCHESTER.  [BOOK   II. 

deemed  valid;  of  the  other,  to  determine  in  what  cases  and  to  what 
extent  a  contract  may  be  rescinded  and  the  consideration  recovered 
back. 

On  the  whole,  we  are  of  opinion  that  the  instructions  of  the  learned 
judge  of  the  Court  of  Common  Pleas  were  incorrect,  and  that  a  new 
trial  must  be  granted.    The  case  is  remitted  for  that  purpose.^ 


CLAEK  V.  MANCHESTER. 

Supreme  Judicial  Court  of  New  Hampshire,  1872. 

[51  New  Hampshire,  594.] 

Assumpsit,  by  Geo.  W.  Clark  against  Manchester,  upon  the  common 
counts,  and  a  quantum  meruit  for  work  and  labor.  The  plaintiff's 
claim  was  to  recover  for  services  as  a  laborer  on  the  city  farm,  from 
April  13,  1870,  to  October  23  of  the  same  year,  by  the  employment  of 
Joseph  Cross,  the  defendants'  agent.  The  evidence  tended  to  show  an 
employment  for  a  year  for  $300,  or  $25  per  month.  It  appeared  that 
the  plaintiff  had  drawn  his  pay  monthly,  at  the  rate  of  $25  per  month, 
from  tlie  city  treasury,  excepting  $23.08  due  on  the  last  month,  which 
has  been  ready  for  him  there  ever  since  he  left  the  defendants'  employ, 
but  which  he  declined  to  receive  because  he  has  claimed  that  he  was 
entitled  to  more.  The  plaintiff  left  the  defendants'  employ  October  23, 
1870 ;  and  it  was  a  question  in  dispute  whether  he  left  voluntarily,  or 
was  discharged  without  sufficient  cause.  The  court  instructed  the  jury 
that  if  they  found  the  hiring  to  be  for  a  year  from  April  l'3,  whether 
the  terms  of  the  contract  were  $25  per  month  or  $300  per  year,  and 
that  the  plaintiff  was  discharged  Oct.  23,  without  sufficient  cause,  he 

'See  50  Am.  Dec.  674,  note;  74  id.  CGI,  note  for  elaborate  citation  of  authori- 
ties.— Ed. 

"If  a  contract  has  been  partly  pcrforniod  by  the  party  in  default,  .the  other 
party,  at  least  if  he  has  received  any  benefit  from  such  part  performance,  can- 
not ordinarily  rescind  the  contract  according  to  the  Enjjlish  law.  Even  though 
he  return  what  he  has  rpcoivcd.  it  is  said  the  parties  cannot  be  restored  to 
their  original  position,  because  lie  has  had  the  temporary  enjoyment  of  tlie 
property.  In  the  leading  case  of  Hunt  r.  Silk  (5  East.  440),  the  ])liiiiitifr.  who 
sought  to  recover  money  be  had  paid  under  an  agreement  for  a  lease,  because 
of  the  defendant's  failure  to  make  repairs  as  agreed,  bad  had  possession  of  the 
premises  a  few  days.  This  was  held  fatal.  .  .  .  Hunt  v.  Silk  has  been 
consistently  followed.  Beed  v.  Blandford,  2  Y.  &  J.  278;  Street  &  Blay,  2  B. 
A  Ad.  456,  404;  Blackburn  v.  Smith,  2  Ex.  783.  See,  also,  Ileilbult  r.  Hickson, 
L.  R.  7  C.  P.  438,  451.  fSuddoth  v.  Bryan  (1888)  30  Mo.  App.  37.  43.] 
It  is  in  accordance  with  this  rule  Hint  a  buyer  is  not  allowed  to  re- 
scind  a   contract   for  breacli   of   warranty.   Street  r.   Blay,   2   15.   A    Ad.   450; 


CHAP.    II.]  CLARK   V.    MANCHESTER.  727 

would  bo  entitled  to  recover  so  much  as  his  services  were  reasonably 
worth  during  the  whole  period  he  worked,  deducting  what  he  had 
received,  and  also  deducting  the  $23.08,  in  case  they  were  of  opinion 
that  it  was  the  understanding  that  the  plaintiff  should  go  to  the  city 
treasury  and  there  draw  his  pay.  To  this  instruction  the  defendants 
excepted,  on  the  ground  that  all  claims  were  settled  and  discharged  by 
payment  and  acceptance  of  pay  by  the  plaintiff,  at  the  rate  of  $35  per 
month,  up  to  about  October  1 ;  that  in  no  event  could  the  plaintiff  be 
entitled  to  recover  on  a  quantum  meruit  for  more  than  the  last 
month's  work. 

The  verdict  was  for  the  plaintiff  for  $109.33,  which  includes  the 
$23.08,  the  jury  being  of  opinion  that  it  was  not  part  of  the  contract 
that  the  plaintiff  should  draw  his  pay  at  the  city  treasury. 

The  case  was  reserved. 

Sargent,  J.  The  jury  have  found,  upon  the  instructions  given 
them,  that  the  contract  was  to  work  for  a  year  for  $300,  or  at  the  rate 
of  $25  per  month  for  the  whole  year,  and  that  the  plaintiff  received 
his  $25  per  month  up  to  October,  and  was  turned  away,  without 
sufficient  cause,  at  that  time.  In  other  words,  the  city  broke  or 
rescinded  its  contract  with  the  plaintiff  at  the  end  of  about  six  months, 
and  after  the  plaintiff  had  worked  through  the  very  best  of  the  season. 
He  had  worked  during  those  months  when  he  could  have  earned  $30 
or  $35  per  month,  whereas  for  the  balance  of  the  year  he  might  not 
be  able  to  earn  more  than  $15  or  $20  per  month. 

If  he  had  continued  the  year  out,  and  had  gone  every  month  and 
received  his  $25,  that  would  have  completed  the  contract  on  both  sides, 
and  that  sum,  by  the  month  for  the  whole  year,  would  have  been  pay- 
ment in  full  for  his  services ;  yet,  when  the  defendants  rescind  the  con- 
tract in  the  midst  of  the  term,  without  sufficient  cause,  they  cannot 
claim  that  the  payments  which  have  been  made,  though  at  the  rate  per 
month  stipulated  for  the  whole  time,  shall  be  received  in  full  for  the 

Gompertz  v.  Denton,  1  C.  &  M.  207;  Poulton  &  Lattimore,  9  B.  &  C.  259; 
Parsons  v.  Sexton,-  4  C.  B.  899;  Dawson  v.  Collis,  10  C.  B.  523,  though 
there  is  the  additional  reason  in  the  case  of  a  warranty  that  it  is  said  to  be  a 
collateral  contract.  In  the  United  States  the  law  is  more  liberal.  It  is  uni- 
versally agreed  that  rescission  is  not  allowable  unless  the  party  seeking  to 
rescind  can  and  does  first  restore  or  offer  to  restore  anytliing  ho  has  received 
under  the  contract  [citing  ^liner  v.  Bradley,  22  Pick.  4.57,  and  numerous  other 
cases],  but  the  construction  of  this  rule  is  far  less  severe  than  in  England. 
.  .  .  Thus  in  many  of  the  States,  rescission  is  allowed  for  breach  of  warranty 
[citing  numerous  authorities  pro  and  eon].  The  most  satisfactory  disposition 
of  many  cases  where  the  plaintiff  cannot,  without  any  fault  on  his  part,  return 
all  he  has  received,  would  be  to  allow  the  plaintiff  to  recover  subject  to  a  deduc- 
tion for  what  he  has  received  and  cannot  return,  and  some  authorities  seem  to 
support  such  solution  of  the  problem.  See  Keener.  Quasi-Contracts,  .30.5;  Wil- 
son V.  Burks,  71  Ga.  862;  Todd  v.  Leach.  100  Ga.  227:  Brewster  r.  Wooster,  131 
N.  Y.  473;  Mason  v.  Lawing,  10  Lea.  204."     \YiUston,  1.  c.  32C-328.— Ed. 


728  CLARK    V.    MANCHESTER.  [BOOK    II. 

services  renrlcred,  if  those  services  were  worth  much  more  for  that 
time  than  the  average  for  the  year. 

The  contract  is  to  be  construed  as  a  whole.  It  is  not  $25  per  month 
for  a  single  month,  or  for  each  separate  month,  or  for  any  number  of 
months  less  than  the  year.  The  contract  being  entire,  the  defendants 
cannot  break  one  part  of  it  and  still  insist  upon  the  performance  of 
the  other  part.  When  the  defendants  rescinded  the  contract,  they  put 
it  out  of  their  power  to  enforce  it  upon  the  other  party,  but  the  other 
party  may  consider  it  as  rescinded  and  claim  pay  just  as  though  it  had 
never  existed,  which  will  be  just  what  he  is  chiiming  here,  namely,  to 
recover  what  his  services  were  worth  for  the  time  he  labored. 

The  error  of  the  defendants'  counsel  in  their  brief  is  in  assuming 
that  here  was  payment  made  by  the  defendants  and  received  by  the 
plaintiff  in  full  for  the  services  of  each  month.  The  defendants  cannot 
hold  the  plaintiff  to  the  agreed  price  per  month  only  in  connection 
with  the  other  part  of  the  contract,  viz.,  that  the  employment  should 
continue  at  the  same  rate  for  the  whole  year.  Where  one  party  to  a 
special  contract,  which  is  executory,  refuses  to  execute  any  substantial 
part  of  his  agreement,  the  other  party  may  rescind,  if  he  do  so- 
unequivocally  and  in  reasonable  time.  Webb  v.  Stone,  24  N.  H.  288 ; 
Allen  V.  Webb.  24  N.  H.  278 ;  Weeks  v.  Robie,  42  X.  H.  316,  and  cases 
cited ;  Danforth  v.  Dewey,  3  N.  N.  79 ;  Judge  of  Probate  v.  Stone, 
44  X.  H.  593. 

This  contract  was  executory,  in  that  it  was  to  be  continued  for  a 
year;  and  when  the  defendants  broke  it  in  this  respect,  they  cannot 
hold  the  plaintiff  bound  by  the  other  provisions  of  it.  The  plaintiff 
had  the  right  to  rescind  the  whole  contract,  and  sue  in  indehitatns 
assumpsit  to  receive  back  a  consideration  paid,  or  on  a  quantum 
meruit  to  recover  what  his  services  were  worth.  This  is  the  same  form 
of  action  as  in  Britton  v.  Turner,  6  N.  H.  481. 

Judgment  on  the  vcrdirl} 

Tn  Posncr  v.  Seder  (lOO.'J)  184  Mass.  :j:n,  it  was  held  tliat  a  person  em- 
ployed for  one  year  to  be  paid  in  a  eertain  sum  eaeh  week  under  a  contyraet 
requiring  him  to  work  overtime  without  extra  pay  not  more  than  two  hours  in 
fine  day  nor  more  than  two  niontlis  in  the  entire  year,  eannot.  if  wronj^fully 
discharged  Ix-fore  the  end  of  the  year,  sue  on  a  quantum  meruit  for  the  over- 
time work  ah»ne,  altliough  he  can  sue  on  such  a  count  for  the  value  of  all  his 
services,  crediting  the  amount  received  as  part  payment.  'Id  (piote  (lie  court 
at  page  334: 

■'Upon  quantum  meruit  the  quest  irm  is  what  are  his  whole  services  fairly 
worth,  and  is  there  anything  fairly  due  him?  Manifestly,  under  a  contract  like 
this,  that  may  he  an  entirely  different  sum  from  the  market  value  of  the  ser- 
vices during  the  extra  hours.  The  case  of  Clark  v.  Mancliester,  r>]  N.  H.  r»;)4, 
is  a  good  illustrati<m  of  the  principles  applicable  to  a  case  like  this." — Ku. 


CHAP.    Il]       WELLSTON    COAL    CO.    V.    FRANKLIN    PAPER   CO.  729 

STOWE    V.    BUTTRICK. 

Supreme  Court  of  Massachusetts,  1878. 

[125  Massachusetts,  449.] 

Contract  upon  an  account  annexed  for  services  rendered  as 
keeper  of  certain  property  attached  by  the  defendant,  a  deputy  sheriff. 
Answer:  1.  A  general  denial;  2.  That  the  contract  was  illegal  and 
void.^ 

Lord,  J.  The  ruling  of  the  presiding  Judge,  that  the  contract 
which  the  plaintiff  seeks  to  enforce  is  void  because  of  illegality,  can- 
not be  sustained.  Cutter  v.  Howe,  122  Mass.  541.  Xor  is  the  posi- 
tion of  the  defendant  tenable  that,  inasmuch  as  he  received  no  benefit 
from  the  services  of  the  plaintiff,  the  plaintiff  cannot  recover.  In 
an  action  upon  a  quantum  meruit  for  services  rendered  to  another 
upon  his  express  request,  the  value  of  the  services  is  not  to  be  deter- 
mined by  the  amount  of  the  benefit  which  the  party  requesting  them 
receives.  If  A  hires  B  to  perform  a  particular  service  in  a  particular 
mode,  the  compensation  is  to  be  determined  by  the  value  of  the  services, 
and  not  by  the  benefit  which  A  derives  from  it.^ 

Exceptions  sustained. 


THE  WELLSTON  COAL  CO.  v.  THE  FRANKLIN  PAPER  CO. 

Supreme  Court  of  Ohio,  1897. 

[57  Ohio  State,  182.] 

MiNSHALL,  J.  The  action  below  was  brought  by  the  Wellston  Coal 
Company  to  recover  of  the  Franklin  Paper  Company  $333,  the 
difference  between  the  contract  price  for  certain  coal  delivered  by  the 
plaintiff  under  a  contract  claimed  to  have  been  wrongfully  broken  by 
the  defendant,  and  the  market  price  at  the  time  of  the  deliveries,  with 
interest.  The  action  is  not  on  the  contract,  but  on  what,  at  common 
law,  would  be  termed  a  count  in  general  assumpsit  on  a  quantum  vale- 
hat. 

The  facts,  about  which  there  is  no  dispute,  are  correctly  stated  in 
the  brief  of  the  plaintiff. 

On  August  7,  1890,  plaintiff  and  defendant  made  a  written  con- 
tract by  which  defendant  for  the  term  of  one  year,  agreed  to  take  its 
entire  supply  of  coal  from  plaintiff  at  the  rate  of  $1.90  per  ton  of 

'The  statement  of  facts  and  part  of  the  opinion  arc  oniittod. — Ed. 
=And  see  PlanchC-  v.  Colburn   (1831)   8  Binji.  14;  Prickctt  v.  Badger  (1856) 
1  C.  B.  N.  S.  295;  Ralston  v.  Kobe  (1876)  30  Oh.  St.  92.— Ed. 


730      '  WELLSTON   COAL   CO.    V.    FRANKLIN   PAPER   CO.       [BOOK   II. 

2,000  pounds  on  the  cars  at  Franklin,  Ohio,  which  after  deducting 
freight,  would  net  the  plaintiff  $1.00  per  ton. 

The  demand  for  such  coal  was  greater  during  the  late  fall  and 
winter  months  of  each  year,  when  plaintiff's  business  would  be  active, 
and  less  during  the  spring  and  summer  months,  at  which  times  its 
business  would  be  dull.  The  sum  of  $1.00  per  ton  for  the  coal  was 
the  market  price,  outside  of  freight  charges,  for  coal  of  the  kind  men- 
tioned in  the  contract,  during  the  summer  of  1890,  and  at  the  time  the 
contract  was  made.  Plaintiff  and  defendant  were  familiar  with  the 
ups  and  downs  of  the  coal  trade,  and  knew  that  the  market  price  of 
such  coal  would  be  higher  during  the  fall  and  winter  months;  and 
they  both  understood  that  defendant  would  require  for  its  manufac- 
turing operations  during  the  entire  period  covered  by  the  contract,  a 
large  amount  of  such  coal,  which  taken  by  defendant  during  all  the 
year  covered  by  the  contract,  would  give  plaintiff  an  assured  sale  for 
that  amount  of  coal  during  the  dull  season.  Such  contracts  for  the 
year's  supply  of  coal  were  usually  made  by  manufacturers  with  coal 
shippers  during  the  summer;  and  were  advantageous  to  both  parties. 

These  facts  were  known  to  both  plaintiff  and  defendant,  who  con- 
tracted with  reference  to  them;  and  plaintiff  would  not  have  made 
the  contract  whereby  it  agreed  to  supply  coal  during  the  fall  and 
winter  months  at  the  contract  price,  which  would  be  less  than  the 
market  prices,  e^icept  for  the  fact  that  it  would  supply  the  defendant 
coal  at  the  same  price  for  the  balance  of  the  year,  when  the  price 
would  be  about  the  same  as  the  contract  price,  and  the  demand  then 
being  small,  it  would  not  otherwise  be  able  to  sell  the  coal. 

During  the  month  of  September,  1890,  the  market  price  of  this 
coal,  outside  of  freight  charges,  was  $1.05  per  ton,  and  from  October  1, 
1890,  to  February  1,  1891,  such  market  price  was  $1.15  per  ton. 
After  February,  during  the  rest  of  the  year  covered  by  the  contract, 
the  market  price  was  the  same  as  the  contract  price.  During  the 
period  of  time  from  August  1,  1890,  to  May  13,  1891,  when  the  con- 
tract was  broken  by  the  defendant,  plaintiff  furnished  defendant,  dur- 
ing September  and  October,  1890,  in  all,  2,562^  tons  of  coal,  for  which 
it  was  paid  the  contract  price;  while,  if  the  same  coal  had  been  sold 
at  the  market  prices  when  delivered,  plaintiff  would  have  received 
$333  more  for  it. 

About  May  13,  1891,  defendant  wrongfully  broke  the  contract,  and 
refused  to  take  any  more  coal  from  plaintiff.  The  contract  did  not 
bind  the  defendant  to  take  any  specified  quantity  of  coal  per  month, 
but  the  average  numjjer  of  tons  per  month,  taken  before  the  contract 
was  broken,  was  four  hundred  and  thirty-four  and  one-fourth  tons; 
and  if  it  had  continued  to  take  coal  under  the  contract  at  the  same 
average  numl)Oi'  of  tons  for  (ho  ])alance  of  May  and  the  montlis,  June 
and  July,  the  plaintiff  would  have  made  a  total  profit  for  that  time 
under  the  contract,  of  $304.22. 


CHAP.    Il]       WELLSTON    COAL    CO.    V.    FRANKLIN    PAPER   CO.  731 

The  question  is  as  to  the  measure  of  damages  to  which  the  plaintiff 
is  entitled  in  a  case  like  this.  It,  as  before  stated,  is  not  on  the  con- 
tract, but  for  the  value  of  the  coal  delivered  at  the  market  price,  be- 
fore the  contract  was  wrongfully  terminated  by  the  defendant,  less 
what  had  been  paid  therefor,  i.  e.,  the  contract  price.  The  plaintiff 
requested  the  court  to  charge  the  jury  that  it  was  entitled  to  recover 
for  the  coal  delivered  prior  to  the  repudiation  of  the  contract  by  the 
defendant,  its  market  value  when  the  deliveries  were  made,  and  is  not 
limited  to  the  price  specified  in  the  contract.  This  the  court  refused 
to  do,  and  directed  the  jury  to  find  a  verdict  for  the  plaintiff  for 
nominal  damages  only. 

The  general  rule  is,  that  when  full  performance  of  a  contract  has 
been  prevented  by  the  wrongful  act  of  the  defendant,  the  plaintiff  has 
the  right  either  to  sue  for  damages,  or  he  may  disregard  the  contract 
and  sue  as  upon  a  quantum  meruit  for  what  he  has  performed.  The 
plaintiff  has  pursued  the  latter  course ;  and  it  seems  well  settled,  both 
on  reason  and  authority,  that  he  had  the  right  to  do  so.  2  Sedgwick 
on  Damages,  8th  ed.  654;  Chamberlain  v.  Scott,  33  Vt.  80;  McCul- 
lough  V.  Baker,  47  Mo.  401;  Kearney  v.  Doyle,  23  Mich.  294;  Buffkin 
V.  Baird',  73  N.  C.  283 ;  U.  S.  v.  Behan,  110  U.  S.  338 ;  Merritt  v.  Rail- 
road, IG  Wend.  586;  Clark  v.  Mayor  of  N.-Y.,  4  Con.  338. 

But  it  is  claimed  on  the  authority  of  Doolittle  v.  McCullough, 
13  Ohio  St.  360,  that  the  contract  price  must  still  be  the  measure  of 
the  plaintiff's  recovery.  There  are  many  expressions  in  the  opinion  in 
that  case  that  seem  to  support  this  view,  and  much  of  the  reasoning  is 
to  the  same  effect.  But  all  that  is  there  said  must  be  taken  as  said 
with  reference  to  the  facts  of  that  case.  The  rule  there  stated  may  be 
regarded  as  a  proper  one  in  a  case  where,  as  in  that  case,  it  appears 
from  the  claim  of  the  plaintiff,  that  the  breach  of  the  contract  by  the 
defendant  worked  no  loss,  but  a  benefit  to  him,  on  the  ground,  as  ap- 
pears, that  had  he  been  required  to  complete  the  work,  he  would  have 
suffered  a  much  greater  loss;  for,  if  the  least  inexpensive  part  of  the 
work  could  not  have  been  done  without  loss,  it  follows  that  the  doing 
of  the  remaining  part,  under  the  contract,  would  have  resulted  in  a 
still  greater  loss.  The  action  upon  a  quantum  meruit  is  of  equitable 
origin,  and  is  still  governed  by  considerations  of  natural  justice. 
Hence,  where  one  has  performed  labor  or  furnished  material  under  a 
contract  that  is  wrongfully  terminated  by  the  other  party  before  com- 
pletion, the  question  arises  whether  the  party,  not  in  fault,  should  be 
confined  to  the  contract  for  what  he  did,  or  to  a  quantum  meruit;  and 
this  must  depend  upon  whether  the  act  of  the  other  party  in  terminat- 
ing the  contract,  works  a  loss  or  not  to  him,  regard  being  had  to  the 
contract.  If  it  works  no  loss,  but  is  in  fact  a  benefit,  as  in  the  case  of 
Doolittle  V.  McCullough,  there  are  no  considerations  of  justice  requir- 
ing that  he  should  be  compensated  in  a  greater  sum  for  what  he  did 
than  is  stipulated  in  the  contract.     These  considerations  exercised  a 


732       WELLESTOX  COAL  CO.  I'.  FRANKLIN  PAPER  CO.    [BOOK  II, 

controlling  influence  in  the  case  just  referred  to.  The  plaintiff  had  a 
contract  with  the  defendant  for  the  making  of  certain  excavations  in 
the  construction  of  a  railroad.  He  was  to  receive  for  the  entire  work 
eleven  cents  per  cubic  yard.  He  had  performed  the  least  inexpensive 
part  of  the  work,  when  the  contract  was  wrongfully  terminated  by  the 
defendant,  and  on  this  part,  by  his  own  showing,  he  had  suffered  a 
loss.  The  proof  showed  that  the  performance  of  the  remainder,  being 
hard-pan,  would  have  cost  him  a  great  deal  more.  It  was  then  evident, 
as  the  court  observed,  that  he  had  sustained  no  loss,  but  a  benefit,  from 
the  termination  of  the  contract  by  the  defendant.  But  in  the  case  be- 
fore us  the  facts  are  very  different.  They  are  in  fact  just  the  reverse. 
The  contract  was  for  the  delivery  of  coal  at  a  price  generally  received 
during  the  dullest  season  of  the  whole  year.  The  defendant  received 
the  coal  during  the  season  when  the  market  was  above  the  contract 
price.  He  had  the  benefit  of  the  difference  between  the  market  and  the 
contract  price ;  but  when  the  dull  season  arrived  and  the  advantages  of 
the  contract  would  accrue  to  the  plaintiff,  the  defendant  repudiated  it. 
The  difference  between  the  two  cases  is  thus  apparent.  In  the  case  before 
us,  justice  and  fair  dealing  require  that  the  defendant  having  repudi- 
ated the  contract,  should  pay  the  market  price  for  the  coal  at  the  time 
it  was  delivered;  in  the  former  case,  as  the  repudiation  of  the  contract 
by  the  defendant  did  not  enrich  him  to  the  loss  of  the  plaintiff,  there 
were  no  considerations  of  justice  on  which  the  plaintiff  could  claim 
more  than  the  contract  price  for  what  he  had  done  under  the  contract. 

The  object  in  allowing  a  recovery  of  this  kind  is  not  to  better  the 
condition  of  the  plaintiff  under  the  contract,  were  it  performed,  but 
to  save  him  from  a  loss  resulting  from  its  wrongful  termination  by 
the  defendant;  or,  in  more  general  words,  to  prevent  the  defendant 
from  enriching  himself  at  the  expense  of  the  plaintiff  by  his  own 
wrongful  act.  The  real  test  in  all  cases  of  a  plaintiff's  right  to  recover 
as  upon  a  quantum  meruit  for  part  performance  of  a  contract,  wrong- 
fully terminated  by  the  defendant,  depends  upon  the  consideration 
whether  the  defendant  is  thereby  enriched  at  the  loss  and  expense  of 
the  plaintiff;  if  so,  then  the  law  adds  a  legal  to  the  moral  obligation, 
and  enforces  it.  Keener,  Quasi  Contracts,  19;  and  ch.  V.  passim. 
And  while  the  action  is  not  on  the  contract  itself,  yet  it  is  so  far  kept 
in  view  as  to  preclude  a  recovery  by  the  plaintiff  where  he  would  neces- 
sarily have  lost  more  by  performing  the  contract,  for  the  considera- 
tion agreed  upon,  than  he  did  by  being  prevented  from  doing  so. 

In  this  view  the  case  of  Doolittle  v.  McCullough  was  rightly  decided, 
and,  when  limited  to  its  facts,  may  well  stand  as  authority  in  all  similar 
cases. 

Judgment  of  the  circuit  court  and  that  of  the  common  pleas  \re- 
vcrscd,  and  cause  remanded  for  a  new  trials 

'"If  the  performance  rendered  consists  of  services,  there  cannot  ordinarily, 
from  the  nature  of  legal  remedies,  be  actual  restitution,  but  it  is  possible  to 


CHAP.    II.]  BROWN    I'.    WOODBURY    AND   ANOTHER.  733 

BROWN  V.  WOODBURY  &  ANOTHER. 

Supreme  Judicial  Court  of  Massachusetts,  1903. 

[183  Massachusetts,  279.] 

Contract  for  an  alleged  breach  of  an  oral  contract  to  employ  the 
plaintiff  as  manager  of  the  hotel  Westminster  in  Boston,  from  Sep- 
tember 1,  1900,  through  August  31,  1901,  with  a  second  count  on  a 
quantum  meruit  for  services  as  manager  from  September  1,  1900,  to 
May  13,  1901.    Writ  dated  June  3,  1901. 

Hammond,  J.  1.  The  declaration  contained  two  counts,  the  first 
based  upon  an  affirmance  of  the  contract,  the  second  upon  a  disaffirm- 
ance of  it.  At  the  close  of  the  evidence  the  defendants  asked  for  a 
ruling  that  the  plaintiff  not  having  waived  the  first  count,  but  having 
relied  on  it  throughout  the  trial,  could  not  recover  upon  the  second 
count,  but  could  recover,  if  at  all,  only  upon  the  first,  and  further 
that  the  plaintiff  at  that  stage  of  the  case  could  not  elect  to  waive 
the  first  count  and  to  rely  only  upon  the  second.  The  judge  refused 
thus  to  rule,  but  having  ruled  that  the  plaintiff  could  not  go  to  the 
jury  on  both  counts,  allowed  him  to  strike  out  the  first  and  to  press 
his  case  on  the  second.  The  ruling  was  correct.  Mullaly  v.  Austin, 
97  Mass.  30,  33,  ad  finem.  Whiteside  v.  Brawley,  152^  Mass.  133, 
and  cases  cited.  See  also  National  Granite  Bank  v.  Tyndale,  179 
Mass.  390.    Linningdale  v.  Livincrston,  10  Johns.  36. 

give  the  equivalent  in  value  under  a  common  count.  Since  money  paid  may 
be  thus  recovered  back,  and  similarly  in  this  country  land,  logic  would  require 
such  a  remedy;  and  it  is  allowed  in  part,  but  only  in  part.  If  the  plaintiff  has 
fully  performed,  the  only  redress  he  has  for  breach  of  contract  by  the  other 
side  is  damages  for  the  breach.  It  is  true  that  if  the  performance  to  which 
he  is  entitled  in  return  is  a  liquidated  sum  of  money,  he  may  sue  in  indebitatus 
assumpsit  and  not  on  the  special  contract;  Keener,  Quasi-Contracts,  300; 
Leake,  Contracts  (.3d  ed.),  45;  Chitty,  Pleadings  (7th  ed.),  i.  358;  Atkinson 
V.  Bell,  8  B.  &  C.  277,  283;  Grandall  v.  Pontigny,  1  Stark.  198;  Savage  v.  Can- 
ning, Ir.  R.  1  C.  L.  434 ;  Wardrop  v.  Dublin,  etc.,  Co.,  Ir.  R.  8  C.  L.  295 ;  Shep- 
ard  V.  Mills,  173  III.  223;  Southern  Bldg.  Ass'n  v.  Price,  88  Md.  155;  Nicol  v. 
Fitch,  115  Mich.  15;  but  the  measure  of  damages  is  what  he  ought  to  have 
received — not  the  value  of  what  he  has  given.  Keener,  Quasi-Contracts,  301 ; 
Leake,  Contracts  (3d  ed.),  45;  Barnett  v.  Sweringen,  77  Mo.  App.  64,  71,  and 
cases  cited;  Porter  v.  Dunn,  61  Hun,  310  (S.  C.  131  N.  Y,  314).  If,  however, 
the  plaintiff  has  only  partly  performed  and  has  been  excused  from  further  per- 
formance by  prevention  or  by  the  repudiation  or  abandonment  of  the  contract 
by  the  defendant,  he  may  recover,  either  in  England  or  America,  the  value  of 
what  he  has  given.  Mayor  v.  Pyne,  3  Bing.  285;  Planche  v.  Colburn,  8  Bing. 
14;  Clay  v.  Yates,  1  H.  &  N.  73:  Bartholomew  r.  Markwick,  15  C.  B.  (N.  S.) 
711;  M'Connell  v.  Kilgallen,  2  L.  R.  Ir.  119.     But  the  right  was  denied  as  re- 


734  BROWN    V.    WOODBURY    AXD   ANOTHER.  [bOOK    II. 

2.  The  instructions  to  the  jury  were  also  correct.  Under  these  in- 
structions the  jury  must  liave  found  that  the  special  contract  of  em- 
ployment was  terminated  by  the  defendants  by  the  discharge  of  the 
plaintiff  without  cause  and  against  his  will,  whereby  it  was  impossible 
for  the  plaintiff  to  perform  the  agreement  on  his  part.  The  defend- 
ants not  only  broke  the  contract  on  their  part,  but  they  made  it  im- 
possible for  the  plaintiff  to  perform  his  part.  In  such  a  case  the  inno- 
cent party  may  either  sue  upon  the  contract  for  damages  for  the 
breach,  or,  if  he  so  elects,  he  may  regard  the  action  of  the  defendants 
as  indicating  a  purpose  on  their  part  to  repudiate  the  contract,  may 
accept  the  repudiation,  and  recover  upon  a  quantum  meruit  the  value 
of  his  services,  as  if  the  special  contract  had  not  existed.  For  cases 
where  this  last  rule  has  been  applied  in  England,  see  Planche  v.  Col- 
burn,  8  Bing.  14;  Goodman  v.  Pocock,  15  Q.  B.  576;  and  the  author- 
ities cited  in  the  note  to  Cutter  v.  Powell,  3  Smith  Lead.  Cas.  (9th 
Am.  ed.)  1212,  1245,  et  seq. 

Although  in  this  country  there  appears  to  be  a  conflict  on  this  ques- 
tion among  the  authorities,  (see  Derby  v.  Johnson,  21  Vt.  17,  and 
Doolittle  V.  McCullough,  12  Ohio  St.  360,)  still,  in  this  State  the  mat- 
ter seems  to  have  been  covered  by  our  previous  decisions,  in  which 
the  English  rule  is  recognized  and  followed.  Fitzgerald  v.  Allen, 
128  Mass.  232.  Cook  v.  Gray,  133  Mass.  106,  111.  Connolly  v.  Sulli- 
van, 173  Mass.  1. 

The  defendants  further  contend  that  the  plaintiff,  having  received 
the  benefit  of  the  board  of  his  father  and  mother  for  several  months, 
cannot  now  avail  himself  of  this  rule.     But  this  board  was  in  part 

cently  as  1802  in  Hulle  v.  Heightman,  2  East.  145,  though  such  a  remedy  is 
no  more  necessary  than  where  he  has  fully  performed,  since  in  both  cases  alike 
the  plaintiff  has  an  effectual  remedy,  in  an  action  on  the  contract  for  dam- 
ages. In  some  jurisdictions,  if  a  price  is  fixed  by  the  contract,  that  is  made 
the  conclusive  test  of  the  value  of  the  services  rendered.  Chicago  v.  Sexton, 
115  111.  230;  Keeler  v.  Clifford,  1(55  111.  544,  548;  Chicago  Training  School  v. 
Davies,  64  111.  App.  503;  Western  v.  Sharp,  14  B.  Mon.  177;  Doolittle  v.  Mc- 
Cullough, 12  Ohio  St.  360  (much  qualified  by  Wellston  Coal  Co.  v.  Franklin 
Paper  Co.  57  Ohio  St.  182)  ;  Harlow  v.  Beaver  Falls  Borough,  188  Pa.  263,  266; 
Noyes  v.  Pugin,  2  Wash.  653.  More  frequently,  however,  the  plaintiff  is  al- 
lowed to  recover  the  real  value  of  the  services  though  in  excess  of  the  contract 
price.  United  States  v.  Bchan,  110  U.  S.  338,  345;  Clover  v.  Gottlieb,  50  La. 
Ann.  568;  Rodemer  v.  Hazlehurst,  9  Gill,  288;  Fitzgerald  v.  Allen,  128  Mass. 
232;  Kearney  v.  Doyle,  22  Mich.  294;  Hemminger  v.  Western  Assurance  Co. 
95  Mich.  355;  McCullough  v.  Baker,  47  Mo.  401;  Ehrlich  v.  JFAna.  L.  I.  Co.  88 
Mo.  249,  257;  Clark  v.  Manchester,  51  N.  H.  594;  Clark  v.  Mayor,  4  N.  Y.  338; 
Wellston  Coal  Co.  v.  Franklin  Paper  Co.,  57  Ohio  St.  182;  Derby  v.  Johnson, 
21  Vt.  17;  Chamberlin  v.  Scott,  33  Vt.  80.  The  latter  rule  seems  more  in  ac- 
cordance with  the  theory  on  which  the  right  of  action  must  be  based — that 
the  contract  is  treated  as  rescinded  and  the  plaintiff  restored  to  his  original 
position  as  nearly  as  possible."    Williston,  1.  c,  320,  321. — Ed. 


CHAP.    II.]  OXENDALE   V.    WETHEEELL.  735 

payment  of  the  work  done  by  the  plaintiff,  and  whether  the  action  be 
upon  the  contract  or  on  quantum  meruit,  the  plaintiff  is  equally  en- 
titled to  it.  Part  payment  in  money  would  not  bar  the  plaintiff  from 
the  action  on  quantum  meruit.  Cook  v.  Gray  and  Connolly  v.  Sullivan, 
uhi  supra,  and  in  principle  part  payment  in  board  can  have  no  differ- 
ent effect.  In  the  opinion  of  a  majority  of  the  court  the  rulings  were 
right. 

Exceptions  overruled. 


(&)  The  Plaintiff  is  in  Default. 

OXENDALE  v.  WETHEEELL. 
King's  Bexch,  1829. 
[7  Law  Journal,  264:}] 

This  was  an  action  of  assumpsit,  for  wheat  and  other  corn,  goods, 
wares  and  merchandizes,  sold  and  delivered.  The  following  appear 
to  be  the  principal  facts  of  the  case,  which  was  tried  before  Mr.  Justice 
Bayley,  at  the  Spring  Assizes  for  the  count}^  of  York,  1829. 

The  action  was  brought  to  recover  the  price  of  one  hundred  and 
thirty  bushels  of  wheat,  alleged  to  have  been  sold  and  delivered  by 
the  plaintiff  to  the  defendant,  at  8s.  per  bushel.  On  the  part  of  the 
plaintiff,  evidence  was  given  to  show,  that,  on  the  17th  of  September, 
1828,  he  had  sold  to  the  defendant  all  the  old  wheat  which  he  had  to 
spare,  at  8s.  per  bushel ;  and  that  he  had  delivered  to  the  defendant 
one  hundred  and  thirty  bushels.  The  defendant  gave  evidence  to 
shew,  that  he  had  made  an  absolute  contract  for  two  hundred  and 
fifty  bushels,  to  be  delivered  within  six  weeks ;  that  the  price  of  corn 
at  the  time  of  the  contract,  was  8s.  per  bushel ;  and  that  it  afterwards 
rose  to  10s.  On  his  part,  it  was  insisted,  that,  the  contract  being  en- 
tire, the  plaintiff,  not  having  delivered  more  than  one  hundred  and 
thirty  bushels,  had  not  performed  his  part  of  the  contract,  and  there- 
fore could  not  recover  for  that  quantity.  It  was  contended  by  the 
other  side,  that  the  vendor  having  delivered,  and  the  vendee  having 
retained  part,  the  contract  was  severed  pro  tanto,  and  that  the  plain- 
tiff was  entitled  to  recover  the  value.  The  learned  Judge  was  of  opin- 
ion, that,  even  if  the  contract  was  entire,  as  the  defendant  had  not 
returned  the  one  hundred  and  thirty  bushels,  and  the  time  for  com- 
pleting the  contract  had  expired  before  the  action  was  brought,  the 
plaintiff  was  entitled  to  recover  the  value  of  the  one  hundred  and 
thirty  bushels,  which  had  been  delivered  to,  and  accepted  by  the  de- 
fendant ;  but  he  desired  the  jury  to  say,  whether  the  contract  for  two 

'This  case  is  also  reported  in  9  B.  &  C.  386.— Ed. 


736  OXEXDALE    V.    WETHERELL.  [bOOK    II. 

hundred  and  fifty  bushels  was  entire,  and  that  only  one  hundred  and 
thirty  bushels  had  been  delivered ;  and  they  found  that  it  was.  A  ver- 
dict was  therefore  taken  for  the  plaintiff;  and  the  defendant  had  lib- 
erty to  move  to  enter  a  nonsuit,  if  the  Court  should  be  of  opinion  that 
the  plaintiff  was  not  entitled  to  recover,  on  the  ground  that  he  had 
not  performed  the  contract ;  and  now — 

Mr.  Brougham  moved  for  a  nonsuit.  In  the  case  of  Walker  v. 
Dixon,  2  Starkie,  281,  the  plaintiff  having  contracted  for  the  sale  of 
one  hundred  sacks  of  flour,  at  94s.  6d.  per  sack,  delivered  part,  but  re- 
fused to  deliver  the  residue,  the  defendant  being  willing  to  receive 
and  pay  for  the  whole;  Lord  Ellexborough  held,  that  the  plaintiff 
could  not  recover  for  the  part  delivered ;  and  nonsuited  him. 

[Mr.  Justice  Bayley.  There  was  a  case  of  Waddington  v.  Oliver, 
2  New  Rep.  61,  on  this  subject.  The  Court  there  appeared  to  think, 
that,  after  the  expiration  of  the  time,  the  plaintiff  might  recover  for 
what  he  had  delivered.] 

It  became  unnecessary  for  the  Court  to  decide  that  point,  as  the 
action  was  brought  before  the  time  had  expired.  But  the  Court  there 
expressly  said,  that  the  contract  was  entire. — The  defendant  might 
.sustain  an  action  against  the  plaintiff  for  his  breach  of  contract ;  and, 
according  to  Templer  v.  M'Lachlan,  2  Id.  136,  and  that  class  of  cases, 
it  seems  doubtful,  whether  the  party  who  himself  breaks  the  contract 
can  sue  upon  it.  The  declaration,  in  its  present  form,  is  the  same  as 
would  be  adopted  if  the  plaintiff  had  fully  performed  his  contract. 

Lord  Tenterden.  I  think,  in  this  case,  no  rule  should  be  granted. 
With  regard  to  the  case  of  Walker  v.  Dixon,  which  has  been  cited  to  us 
as  an  authority  in  favour  of  the  defendant,  it  appears  by  Mr.  Man- 
ning's Digest,  p.  389,  that,  in  that  case,  the  Court  afterwards  set  aside 
the  nonsuit.  If  the  rule,  which  has  been  contended  for,  were  to  pre- 
vail, it  really  must  follow,  that,  if  there  had  been  a  contract  for  250 
bushels  of  wheat,  and  249  had  been  delivered  to  and  retained  by  the 
defendant,  the  vendor  could  never  recover  for  the  249,  because  he  had 
not  delivered  the  whole.  The  defendant  ought  to  pay  for  what  he  has 
had ;  and  bring  an  action  against  the  plaintiff  for  the  non-perform- 
ance of  his  contract  in  not  delivering  the  whole. 

Mr.  Justice  Bayley  concurred.^ 

Mr.  Ju.stice  Parke.  I  am  of  the  same  opinion.  The  case  which  has 
been  referred  to,  of  Waddington  v.  Oliver,  proceeds  upon  the  known 
distinction,  which  I  tako  to  be  this:  whore  there  is  an  entire  contract 
to  deliver  a  largo  (|iiantity  of  goods,  oonsi.sting  of  distinct  parcels, 
within  a  specified  time,  and  the  seller  delivers  part,  he  cannot,  before 

'In  the  report  of  this  case  in  9  B.  &  C.  386,  387,  Mr.  Justice  Bayley  is  re- 
ported to  have  said:  "The  defendant,  having  retained  the  130  bu.shels  after 
the  time  for  completing  the  contract  had  expired,  was  bound  by  law  to  pay 
for  the  same." — Ko. 


CHAP.    II.]  CHAMPLIN    V.    ROWLEY.  737 

the  expiration  of  that  time,  bring  an  action  to  recover  the  price  of  that 
part  delivered,  because  the  purchaser  may,  if  the  vendor  fail  to  com- 
plete his  contract,  return  the  part  delivered ;  but,  if  he  retain  the  part 
delivered  after  the  seller  has  failed  in  performing  his  contract,  the  lat- 
ter may  recover  the  value  of  the  goods  which  he  has  so  delivered. 
Thus,  if  the  contract  is  to  deliver  three  articles,  and  the  seller  sends 
but  one,  the  buyer  may,  if  he  please,  refuse  to  receive  it :  but,  if  he 
receive  it,  he  must  pay  for  it,  though  the  contract  to  deliver  the  three 
be  not  performed.  For  the  breach  of  that  contract  he  must  resort  to 
his  action. 

Mr.  Justice  Littledale  concurred.^ 


CHAMPLIX  V.  EOWLEY. 

COUET  FOR  THE  CORRECTION  OF  ERRORS  OF  New  YoRK,  1837. 

[18  Wendell,  187.] 

Error  from  the  Supreme  Court.  Champlin  sued  Rowley  in  an  ac- 
tion of  assumpsit,  and  declared  on  the  common  counts  for  goods  and 
chattels  and  hay  sold  and  delivered.  On  the  trial  of  the  cause  it  ap- 
peared that  on  13th  September,  1831,  a  contract  was  entered  into  by 
the  parties,  whereby  the  plaintiff  agreed  to  deliver  to  the  defendant, 
at  a  certain  dock  in  Rhinebeck  in  Dutchess  county,  100  tons  of  hay, 
and  as  much  more  beyond  that  quantity  as  he  had  to  spare,  to  be  de- 
livered pressed,  between  the  day  of  the  date  of  the  contract  and  the 
last  run  of  the  sloops  navigating  the  river;  for  which  the  defendant 
agreed  to  pay  at  the  rate  of  three  shillings  and  sixpence  per  cwt., — 
$100  to  be  paid  in  advance,  and  the  residue  when  the  whole  quantity 
should  be  delivered.  The  defendant  paid  the  $100  advance.  The 
plaintiff  commenced  the  delivery  of  hay  on  25th  October,  1831,  and 
delivered  more  or  less  every  week  until  the  river  closed  on  the  9th  De- 
cember, when  the  whole  quantity  of  hay  delivered  amounted  only  to 
52  tons  and  900  wt.  The  ordinary  time  of  the  closing  of  the  river  at 
Ehinebeck  is  from  20th  to  30th  December.  The  defendant,  in  pursu- 
ance of  a  notice  attached  to  his  plea,  offered  to  prove,  that  after  the 
making  of  the  contract  the  price  of  hay  rose  in  the  market  to  eight 
shillings,  and  from  that  to  ten  shillings  per  cwt.,  and  that  had  the 
plaintiff  performed  his  contract,  the  net  profits  which  the  defendant 
would  have  made  upon  the  hay  undelivered  would  have  exceeded  the 
sum  claimed  by  the  plaintiff  for  the  quantity  delivered ;  and  lie  fur- 

^See  further  on  the  subject  of  entire  contract:  Sinclair  r.  Bowles.  0  B.  &  C. 
92;  7  Law  Journ.  K.  B.  178;  Poulton  v.  Lattimore,  9  B.  &  C.  259;  7  Law  Journ. 
K.  B.  22.5.— Rep. 

See  Shipton  v.  Casson   (1820)   5  B.  &  C.  378. 


738  CHAMPLIN    V.    ROWLEY.  [BOOK   II. 

ther  offered  to  prove  that  he  hired  a  storehouse  m  the  city  of  New- 
York  for  the  reception  of  the  hay,  at  a  rent  of  $90,  which  he  had  been 
obliged  to  pay,  and  in  consequence  of  the  non-performance  of  the  con- 
tract by  the  plaintiff,  the  storehouse  had  been  unoccupied  and  of  na 
use  to  him:  which  evidence  was  objected  to  by  the  plaintiff  and  re- 
jected by  the  judge.  The  defendant  insisted  that  the  plaintiff  was  not 
entitled  to  recover,  1.  because  he  had  failed  in  performance  of  the 
contract  on  his  part;  and  2.  that  at  all  events  he  could  not  recover 
under  the  common  counts.  The  judge  ruled  that  the  defendant  hav- 
ing received  a  partial  benefit,  the  action  lay  without  showing  a  full 
performance  on  the  part  of  the  plaintiff,  and  that  a  recovery  might  be- 
had  under  the  common  counts;  and  he  accordingly  directed  the  jury 
that  the  plaintiff  was  entitled  to  their  verdict  for  the  value  of  the  hay 
delivered  at  the  contract  price,  deducting  the  $100  paid,  with  the  in- 
terest of  the  balance  from  9th  December,  when  the  river  closed.  The- 
jury  found  a  verdict  for  the  plaintiff  for  $386.64.  The  defendant 
made  a  case  and  applied  to  the  Supreme  Court  for  a  new  trial,  which 
was  granted.  See  opinion  of  court,  13  Wendell,  260.  On  the  appli- 
cation of  the  plaintiff,  to  enable  him  to  sue  out  a  writ  of  error,  the 
rule  granting  a  new  trial  was  vacated  and  judgment  was  entered  for 
the  defendant.  The  case  was  then,  by  agreement  of  the  parties,  turned 
into  a  special  verdict,  by  which  the  Jury  were  represented  to  find  the 
contract  as  above  stated,  the  payment  of  the  advance  of  $100,  the  de- 
livery of  the  52  tons  and  900  wt.,  and  the  closing  of  the  navigation  on 
the  9th  December.  The  jury  were  also  represented  to  find  "that  after 
the  making  of  the  contract  and  in  the  course  of  the  ensuing  winter  the 
price  of  hay  rose  in  the  market  to  eight  shillings,  and  from  that  sum 
to  ten  shillings  per  cwt. ;"  and  the  hiring  of  the  store  in  New  York,, 
and  the  consequent  loss  to  the  defendant,  were  also  set  forth.  A  rec- 
ord being  made  up  incorporating  the  special  verdict,  and  rendering 
judgment  thereon  for  the  defendant,  the  plaintiff  sued  out  a  writ  of 
error,  removing  the  record  into  this  court. 

After  advisement,  the  following  opinion  was  delivered. 

By  the  Chancellor  [Walworth].  This  is  an  action  to  recover  com- 
pensation for  the  value  of  hay  delivered  in  part  performance  of  a  con- 
tract to  deliver  a  larger  quantity,  and  to  be  paid  for  when  the  whole 
was  delivered.  From  the  facts  stated  in  the  special  verdict  there  is  no 
doubt  that  the  non-performance  of  the  contract  in  full  has  never  been 
waived  by  any  act  of  the  defenrlant;  and  it  is  also  very  prol)able  from 
the  facts  stated  in  the  special  verdict  that  he  must  have  sustained  con- 
siderable damage  by  the  non-delivery  of  the  residue  of  the  hay  accord- 
ing to  the  contract.  It  is  not  found  by  the  verdict  that  the  plaintiff 
offered  to  deliver  the  residue  of  the  hay  after  the  time  specified  in  the 
agreement,  or  that  he  cv&r  requested  flie  defendant  to  return  tlie  hay 
which  had  l)een  actually  delivered.  Neither  was  that  necessary,  if 
some  of  the  recent  cases  in  England  on  this  subject  can  be  considered 


CHAP.    II.]  CHAMPLIN   V.   ROWLEY.  739 

as  law  in  this  State.  In  Oxendale  v.  Witherall,  9  B.  &  C.  386,  it  was 
held  that  the  party  who  had  failed  to  perform  his  contract  could  re- 
cover against  the  other,  who  had  not  been  in  fault,  for  the  wheat  de- 
livered in  part  performance  of  his  agreement,  unless  the  defendant 
had  returned  the  wheat  delivered.  This  decision,  carried  to  the  ex- 
tent it  was  in  that  case,  cannot  be  considered  as  good  law  anywhere; 
for  it  is  not  founded  upon  any  equitable  principle,  and  is  contrary  not 
only  to  justice,  but  also  to  common  sense.  The  only  way  I  can  account 
for  it  is  upon  the  supposition  that  the  facts  of  the  case  are  not  prop- 
erly stated  in  the  report;  or  that  the  injustice  of  requiring  the  party 
who  was  not  in  fault  to  be  at  the  expense  of  returning  to  the  other 
party  bulky  articles  of  this  description,  or  even  of  seeking  him  for  the 
purpose  of  making  an  offer  to  return  them  to  protect  himself  from  an 
action,  was  not  presented  to  the  consideration  of  the  court.  Again: 
in  that  case,  as  in  this,  the  contract  was  not  to  deliver  the  whole  quan- 
tity at  one  time,  but  to  deliver  the  whole  within  a  certain  specified 
period.  Neither  was  there  any  agreement,  either  express  or  implied, 
that  the  defendant  should  not  be  permitted  to  sell  or  use  the  several 
parcels,  delivered  from  time  to  time,  until  the  latest  period  for  com- 
pleting the  contract  had  actually  expired.  Here  the  contract  was  to 
deliver  a  large  quantity  of  pressed  hay  upon  the  dock  at  Ehinebeck, 
between  the  twelfth  of  September  and  the  closing  of  the  navigation  on 
the  river ;  from  which  it  is  fairly  to  be  inferred  that  it  was  understood 
by  both  parties  that  it  was  to  be  transported  from  thence  to  the  market 
where  such  an  article  as  pressed  hay  was  used,  by  water,  and  while 
the  river  remained  open.  The  plaintiff,  therefore,  was  not  bound  to 
take  all  the  hay  to  the  dock  at  once;  but  the  defendant,  by  his  con- 
tract, was  bound  to  receive  it  in  reasonable  parcels,  as  it  was  brought 
to  the  place  appointed  for  the  delivery  within  the  time  specified. 
Lewis  V.  Weldon,  3  Rand,  71.  Neither  is  it  the  sensible  construction 
of  this  agreement  that  the  defendant  was  to  keep  the  fifty-two  tons  of 
hay  on  hand  at  Rhinebeck  dock,  until  after  the  navigation  closed,  for 
the  purpose  of  seeing  whether  the  other  party  intended  to  perform  his 
agreement  as  to  the  delivery  of  the  residue.  The  idea  of  founding  an 
action  upon  the  neglect  of  the  defendant  to  return  the  hay  delivered 
in  such  a  case,  therefore,  is  not  founded  in  good  sense.  And  I  confess 
I  can  see  no  ground  for  the  distinction  which  has  been  established  by 
the  English  cases,  since  the  Revolution,  between  the  part  performance 
of  a  contract  for  labor  and  a  partial  performance  of  a  contract  for  the 
delivery  of  specific  articles  under  such  an  agreement  as  this.  If  the 
fifty-two  tons  of  hay  delivered  under  this  contract  were  in  New  York 
at  the  time  the  navigation  closed,  as  it  may  fairly  be  presumed  they 
were,  if  the  defendant  had  paid  a  reasonable  attention  to  liis  own  in- 
terest, or  if  the  wheat  in  the  case  of  Oxendale  v.  Witherall  had  been 
sold  or  converted  into  flour  before  the  failure  of  the  plaintiff  to  per- 
form the  residue  of  his  contract,  it  would  be  about  as  unreasonable  to 


740  CIIAMPLIN    V.    ROWLEY.  [BOOK    II. 

require  the  defendant  to  return  the  hay  to  the  plaintiff  as  it  would 
be  to  return  the  fruits  of  the  labor  of  a  man  who  had  neglected  to  per- 
form his  contract  for  labor  in  full. 

If  any  action  can  be  sustained,  in  such  a  case,  by  the  party  who  has 
failed  to  perform  his  contract,  without  any  fault  or  acquiescence  or 
waiver  of  a  strict  performance  by  the  party  who  has  received  the  bene- 
fit of  the  part  performance,  it  must  be  upon  the  equitable  principle 
recognized  by  the  Supreme  Court  of  New  Hampshire  in  Britton  v. 
Turner,  6  N.  H.  492.  The  principle  adopted  in  the  case  referred  to 
is,  that  it  is  unconscientious  and  inequitable  for  a  party  who  has  been 
actually  benefited  by  the  part  performance  of  a  contract,  aliove  or  be- 
yond the  damages  he  has  sustained  by  the  non-performance  of  the 
residue  of  the  agreement,  to  retain  this  excess  of  benefit  without  mak- 
ing the  other  party  a  compensation  therefor;  and  that  this  excess  of 
benefit  arising  from  the  part  performance  of  the  other  party,  forms 
a  new  consideration  upon  which  the  law  implies  a  promise  to  pay  for 
the  same,  and  which  excess  of  benefit,  therefore,  may  be  recovered  in 
the  equitable  action  of  assumpsit.  But  if  the  nature  of  the  part  per- 
formance is  such  that  the  other  party  can  reject  the  benefit  received 
therefrom,  as  by  offering  to  return  specific  articles  received  in  part 
performance,  but  not  actually  converted  or  used,  he  is  at  liberty  to  do 
so,  and  to  reserve  his  remedy  for  the  non-performance  of  the  contract. 
Courts  of  equity  sometimes  act  upon  a  similar  principle  in  relieving  a 
party  against  a  penalty  or  forfeiture  arising  from  misfortune  or  the 
neglect  of  a  party  to  perform  his  agreement;  and  perhaps  in  some 
cases  it  has  been  done  where  the  forfeiture  was  incurred  wilfully  and 
intentionally,  without  any  pretence  of  excuse  arising  from  mistake  or 
inability  to  perform.  With  the  exception  of  this  last  class  of  cases,  if 
courts  of  justice  were  at  liberty  to  make  new  laws  instead  of  administer- 
ing those  which  are  already  in  existence,  and  upon  which  the  contract  of 
the  parties  litigant  are  supposed  to  ])v  founded,  or  if  this  was  a  new 
question  upon  which  a  court  in  this  State  was  now  to  pass  for  the  first 
time  in  settling  a  principle  upon  the  flexibility  of  the  common  law  as 
applied  to  new  cases,  I  see  no  reasonable  ol)jection  to  the  transferring 
these  principles  of  the  court  of  cliancery  to  courts  of  common  law,  in 
cases  of  mere  personal  contracts,  not  founded  upon  agreements  rela- 
tive to  the  sale  or  transfer  of  an  interest  in  real  estate.  But  I  con- 
sider this  question  as  settled  in  this  State,  by  a  uniform  course  of  de- 
cisions for  the  last  twenty-five  years,  during  wliich  time  tlie  laws  have 
undergone  a  most  thorough  revision  ])y  the  legislature,  without  any 
attempt  to  change  the  law  in  lliis  respect,  as  settled  by  i'lie  Supreme 
Court.  I  think  it  l)elongs,  tberefore,  to  the  legislature,  mid  not  to 
this  court,  to  make  a  change  in  the  law  in  this  respect,  if  such  a  cliange 
is  deemed  to  be  expedient  and  useful  to  the  community.  Tlie  only 
possible  objection  I  can  perceive  to  such  a  change  is,  that  it  may  be  a 
strong  temptation  to  negligence  in  the  performance  of  personal  con- 


CHAP.    II.]  HELM    V.    WILSON,  741 

tracts,  as  the  known  practice  of  the  court  of  chancery  unquestionably 
is  with  respect  to  agreements  for  the  sale  or  purchase  of  real  property. 
The  conclusion  at  which  I  have  arrived  on  the  question  as  to  the  plain- 
tiff's right  to  recover  at  all  in  such  a  case,  which  was  the  principal 
question  before  the  Supreme  Court,  entitles  the  defendant  to  a  judg- 
ment upon  this  special  verdict,  upon  the  facts  found  thereby. 

If  the  majority  of  the  court  agree  with  me  in  the  conclusion  at 
which  I  have  arrived  upon  the  first  point,  the  judgment  should  be 
affirmed;  but  if  they  agree  with  me  upon  the  last  point,  and  not  upon 
the  first,  the  writ  of  error  should  be  dismissed ;  so  that  the  plaintiff  in 
error  may  seek  his  remedy,  if  he  has  any,  by  an  application  to  the  Su- 
preme Court. 

For  the  reasons  before  stated,  I  must  vote  for  an  affirmance  of  the 
judgment. 

On  the  question  being  put.  Shall  this  judgment  be  reversed?  the 
members  of  the  court  divided  as  follows : — 

In  the  affirmative:  Senators  Beckwith,  J.  P.  Jones,  LoomiS;, 
Paige,  Speaker^  Tallmade,  Wager,  Willes,  Works — 9. 

In  the  negative :  The  President  of  the  Senate,  The  Chancellor, 
and  Senators  Armstrong,  J.  Beardsley,  L.  Beardsley,  Downing, 
Edwards,  Fox,  Johnson,  H.  F.  Jones,  Lacy,  McLean,  Powers, 
Sterling,  Tracy,  Van  Dyck  —  16. 

Whereupon  the  judgment  of  the  Supreme  Court  was  affirmed.^ 


HELM  V.  WILSOK 
Supreme  Court  of  Missouri,  1835. 

[4  Missouri,  41.-] 

In  appeal. 

McGirk,  Judge,  delivered  the  opinion  of  the  court. 

Wilson  brought  an  action  of  assumpsit  on  a  special  agreement ; 
the  first  count  goes  for  an  agreement  by  which  Wilson  agreed  to  dig 
a  ditch  and  tail  race  for  a  mill,  the  race  was  to  be  of  a  certain 
description.  Helm  was  to  do  certain  things  on  his  part  to  enable  the 
))laintiff  to  proceed.  Then  there  is  a  count  on  the  quantum  meruit — 
issue  non  assumpsit.    There  was  proof  of  the  special  agreement ;  there 

'Accord:  Catlin  v.  Thomas  (1863)  26  N.  Y.  217;  same  case  in  84  Am.  Dec. 
183  and  note,  188.  See,  also,  notes  (with  collection  of  authorities)  to  the 
following  cases:  Oakley  v.  Morton  (1854)  11  N.  Y.  25;  62  Am.  Dee.  49; 
Leonard  v.  Dyer  1857)  26  Conn.  172;  68  Am.  Dec.  382;  Doster  v.  Brown 
(1858)  25  Ga.  24;  71  Am.  Dec.  153;  Smith  v.  Brady  (1858)  17  N.  Y.  173;  72 
Am.  Dec.  442;  Dula  v.  Cowles  (1859)  7  Jones'  Law  (N.  C.)  290;  75  Am.  Dec. 
463.— Ed. 

=The  principal  case  is  also  reported  in  28  Am.  Dec.  336,  and  see  note  341. — 
Ed. 


T-i2  HELM    V.    WILSON.  [BOOK    II. 

was  also  proof,  though  somewhat  conflicting,  that  some  of  the  work, 
that  is  the  tail  race,  was  done  according  to  contract.  There  was 
evidence  to  shew  that  some  work  had  been  done  on  the  head  race; 
but  not  enough  to  effect  the  object  had  in  view  by  the  contract.  How 
deep  this  race  should  have  been  seems  to  depend  on  the  fact  of  raising 
certain  dams  along  the  embankments  so  as  to  carry  the  water  from  the 
springs  to  a  still  house,  which  Helm  was  to  make  and  keep  the  water 
following  on  behind  the  ditcher,  so  that  he  would  be  constantly 
informed  when  the  race  was  deep  enough.  This  Helm  failed  and 
refused  to  do.  Whether  Wilson  dug  all  he  could  without  running  the 
risk  of  digging  too  much,  does  not  appear  to  be  settled  by  the  testi- 
mony.    There  is  as  to  this  point  conflicting  testimony. 

When  the  evidence  was  closed  on  both  sides  the  plaintiff's  counsel 
prayed  the  court  to  instruct  the  jury. 

1st.  That  if  they  find  from  the  evidence  that  Wilson  made  a  con- 
tract as  stated  in  either  of  the  special  counts,  and  has  performed  it, 
they  will  find  for  him. 

2nd.  That  if  they  find  from  the  evidence  that  there  was  no  contract, 
but,  the  work  was  done  at  the  request  of  the  defendant,  then  under 
the  general  count  they  must  find  for  the  plaintiff. 

3rd.  That  if  the  jury  find  that  there  was  a  special  contract,  and 
Wilson  performed  work  under  that  contract  different  from  the  work 
to  be  done,  then  they  will  find  for  the  plaintiff  on  the  general  count, 
for  work  and  labour.     Which  instructions  were  given. 

The  defendant's  counsel  then  asked  the  court  to  instruct  the  jury. — 
That  if  they  found  the  agreement,  and  that  the  plaintiff  had  not 
performed  all  he  could  have  performed,  they  must  find  for  tlie 
defendant. 

2nd.  The  second  is  the  same  in  substance  as  the  first. 

3rd.  That  if  the  work  proved  was  done  under  a  special  agree- 
ment, but  not  according  to  it,  then  tliey  must  find  for  the  defendant 
unless  the  defendant  prevented  tlie  execution  of  the  special  agreement. 

These  instructions  were  refused.  There  was  a  verdict  for  the  plain- 
tiff, and  judgment  thereon,  to  reverse  which  the  defendant  brings 
his  cause  to  this  court  by  appeal. 

In  the  argument  of  the  cause  only  one  point  was  made,  which  is, 
that  where  a  special  agreement  exists,  and  the  plaintiff  proves  a  part 
execution  of  the  work,  and  then  tlie  work  ceases  without  the  balance 
being  done  and  a  part  only  or  the  whole  performed,  but  different  from 
the  agreement :  in  either  case  the  party  can  recover  for  what  the  work 
is  worth. 

To  prove  the  plaintiff  can  recover  in  such  cases  Mr.  Rces  for  the 
appellee  cites  1  Sel.  X.  P.  ])y  Wbcaton.  T.H,  note  23;  Bui.  X.  P.  13!) ; 
Strange,  f;38 ;  10  John  II.  3G ;  1  Mo.  R.  17;  Labaum  v.  Hill  &  Kees; 
1  Bos.  &  Pul.  354. 

The  case  in  Buller  does  support  the  proposition  assumed  by  the 


CHAP,    II.]  HELM    V.    WILSON.  743 

iippellee's  counsel.  In  page  139  Buller  lays  down  the  law  thus.  If  a 
man  declare  on  a  special  agreement  and  likewise  upon  a  quantum 
meruit,  and  at  the  trial  prove  a  special  agreement  but  different  from 
what  is  laid — he  cannot  recover  on  either  count,  not  on  the  first 
because  of  the  variance,  nor  on  the  second  because  there  v/as  a  special 
agreement.  But  if  he  proved  a  special  agreement  and  the  work  done, 
but  not  pursuant  to  such  agreement,  he  shall  recover  on  the  quantum 
meruit,  for  otherwise  he  would  not  be  able  to  recover  at  all,  as  if  in 
3.  quantum  meruit  for  work  and  labour,  the  plaintiff  proved  he  had 
built  a  house  for  the  defendant :  though  the  defendant  should  after- 
wards prove  there  was  a  special  agreement,  about  the  building  of  it, 
viz. :  That  it  should  be  built  at  such  a  time  and  in  such  a  manner, 
iind  that  the  plaintiff  had  not  performed  the  agreement.  Yet  the 
plaintiff  would  be  allowed  to  recover  upon  the  quantum  meruit,  other- 
wise he  could  not  recover  at  all,  though  doubtless  such  proof  would  be 
proper  to  lessen  the  damages. 

It  is  admitted  by  us  that  such  has  been  holden  to  be  law  in 
some  cases  both  in  America  and  England  since  Iveeks  case  cited  by 
Justice  Buller  in  Buller's  N.  P.  139,  decided  at  nisi  prius 
Oxon.  1744. 

We  never  have  seen  the  cases  reported  anywhere.  The  case  above 
cited  from  Strange  cannot  be  now  had,  and  the  case  of  Cooke  v. 
Manstone,  Bossanquet  &  Puller  is  wrongly  cited. 

The  case  cited  from  Lenningdale  v.  Livingston,  10  .John  H.  38, 
is  a  case  of  this  kind :  the  plaintiff  agreed  to  furnish  certain  logs,  to 
bore  and  lay  them;  he  procured  and  brought  the  logs  to  the  place 
and  bored  some;  the  defendant  then  refused  to  have  the  balance 
of  the  work  done,  took  the  logs  and  used  them.  The  plaintiff  was 
allowed  in  this  case  to  recover  on  the  General  count  for  the  reason 
that  the  defendant  had  prevented  the  execution  of  the  special  agree- 
ment. The  court  in  that  case  advert  to  the  doctrine  as  laid  down 
in  Buller,  139,  and  seem  to  admit  that  the  law  is  correctly  laid  down 
there.  In  our  opinion  this  case  in  Johnson  was  put  on  the  correct 
ground,  which  is  this,  that  where  there  is  a  special  agreement  and  the 
plaintiff  is  prevented  by  the  defendant  from  doing  the  work,  then 
the  plaintiff  may  recover  the  worth  of  the  labour  at  least  or  he  may 
recover  for  the  whole  as  if  performed.  Such  was  the  opinion  of  this 
court  in  the  case  of  Paulsil  &  Clendennin,  3  vol.  IMo.  R.  230. 

In  the  case  of  Labaum  v.  Hill  &  Kees,  1  vol.  Mo.  R.  47,  this  court 
did  lay  down  the  law  to  be,  that  when  there  was  a  special  agreement 
declared  on  and  proved  though  not  performed  according  to  the  agree- 
ment, yet  the  plaintiff  may  recover  for  the  work  really  done.  We 
are  of  opinion  that  the  law  in  this  case  was  not  well  considered;  in 
this  case  the  court  laid  down  the  law  to  be  that  where  there  was  a 
covenant  to  do  work  in  a  particular  manner  and  at  a  particular  time, 
that  parole  evidence  might  be  given  to  prove  the  work  done,  and  that 


744  HELM    I".    WILSOX-  [book    II. 

the  plaintiff  might  recover  on  a  qiinntura  meruit,  though  the  work 
may  prove  not  to  have  been  done  according  to  the  covenant. 

This  point  was  expressly  decided  by  the  court  on  the  authority  of 
the  case  put  in  Buller,  139,  and  also  on  the  authority  of  the  case  in 
10th  John.  R.  38.  See  page  47,  1  vol.  Mo.  R.  So  far  as  regards 
the  case  in  10th  John.  R.  the  court  seems  lo  recognize  the  authority 
of  Keeks  case  in  Buller,  but  expressly  decide  the  case  on  the  ground, 
that  the  defendant  had  put  an  end  to  the  contract  and  prevented 
the  plaintiff  from  proceeding  to  execute  the  agreement.  The  case  of 
Labaum  v.  Hill  &  Kees  as  to  this  point  has  never  been  well  received 
by  the  bar  as  we  understand.  In  the  case  of  Crump  v.  Meed,  3  vol. 
Mo.  R.  235,  this  court  decided  that  where  there  was  a  covenant  to 
perform  work  the  party  could  not  abandon  his  covenant  and  go  for 
work  and  labor  on  quantum  meruit.  It  seems  to  us  this  case  over- 
rules the  doctrine  as  laid  down  in  Labaum's  case.  It  is  a  matter 
of  regret  that  the  report  of  Keeks  case  cannot  be  had:  if  it  were  in 
truth  such  a  case  as  Justice  Buller  says  it  was,  then  we  cannoi  see 
how  it  can  be  consistent  with  the  law.  Buller  says  the  case  was  that 
it  undertook  to  build  a  house  of  a  particular  kind,  and  to  do  the  work 
in  a  particular  manner  and  at  a  particular  time,  he  may  recover 
for  whatever  the  work  is  worth,  though  it  should  appear  that  the 
work  was  not  done  in  the  manner  contracted  for.  Can  this  be  the 
law?  It  seems  to  us  it  cannot  be  so.  It  is  a  general  rule  of  law 
that  a  contract  must  be  performed  according  to  the  terms  of  the 
agreement  before  the  party  can  have  any  right  of  action.  This  rule 
however  is  subject  to  some  qualifications — one  is,  that  if  the  other 
party  will  prevent  the  execution  of  the  agreement  then  the  action 
will  lie,  and  the  plaintiff's  right  to  recover  is  as  complete  as  if  the 
contract  had  been  fully  executed. 

Another  qualification  is,  that  where  the  parties  vary  the  original 
terms  of  the  agreement  by  substituting  something  else,  for  the  whole 
or  for  particuhir  parts  of  the  agreement,  there  the  substituted  things 
become  a  part  of  the  agreement,  and  the  parts  dispensed  with  are 
no  longer  any  part  of  the  agreement.  But  then  the  substituted  parts 
must  be  performed  before  any  action  can  arise,  and  it  is  possil)le  there 
may  be  ca.ses  where  the  act  of  (Jod  would  excuse  the  performance 
so  as  to  enable  the  plaintiff  to  recover  for  what  he  had  done,  where 
all  was  not  done.  The  legislature  cannot  make  a  law  impairing  the 
obligation  of  a  contract.  The  courts  cannot  do  it,  nor  should  they 
permit  a  party  to  do  it,  and  yet,  at  the  same  time  allow  him  to 
recover  for  the  full  value  of  his  labor  as  if  he  had  complied  with  his 
agreement,  under  the  apology  that  though  it  is  true  he  has  utterly 
disregarded  his  agreement  and  has  done  work  for  the  other  party 
which  was  not  agreed  for,  he  must  recover  in  general  assumpsit  or 
he  cannot  recover  at  all.  Suppose  he  could  not  recover  at  all.  What 
of  that?    It  is  better  he  never  should  recover,  (ban  that  the  defend- 


CHAP.    II.]  HELM    V.    WILSON".  745 

ant  should  be  compelled  to  pay  for  work  he  never  contracted  for: 
Suppose  A.  agrees  to  build  a  liouse  for  B.  on  the  land  of  B.  which  he 
wishes  to  use  as  a  store  room  for  wholesale  business,  and  the  form 
and  manner  of  the  work  is  agreed  on  to  that  end.  A.  goes  on  to 
build  the  house  only  half  as  big  as  he  was  to  make  it,  with  only  half 
the  number  of  windows  and  doors,  and  those  windows  and  doors  only 
of  half  the  size  agreed  for. 

B.  refuses  to  pay  anything  and  is  sued  in  general  assumpsit  for 
so  much  as  the  work  is  worth.  The  defendant  proves  on  the  trial  that 
he  bargained  for  a  large  house  well  lighted  and  to  be  of  good  work- 
manship, and  the  house  built  is  totally  unfit  for  the  purpose;  that 
the  workmanship  is  inferior  and  almost  useless.  The  law  as  laid 
down  in  Buller  will  make  this  reply  to  hiai:  this  plaintifE  notwith- 
standing his  special  agreement  to  build  for  you  a  house  fit  for  the 
business  of  a  wholesale  merchant,  had  a  right  instead  thereof  to  build 
just  such  a  house  for  you  as  he  might  please.  If  the  house  will  not 
do  for  the  purpose  you  wanted  it  for,  yet  it  will  answer  for  some  other 
purpose  and  we  will  leave  it  to  the  Jury  to  say  how  much  such  a  house 
is  worth  as  a  blacksmith  shop,  a  stable  or  dwelling  house,  and  if  they 
find  the  house  built  is  good  for  any  of  those  things,  they  will  find 
how  much  the  labor  and  materials  are  worth,  and  you  must  pay  for 
the  house  according  to  such  value.  This  doctrine  is  predicated  on 
the  idea  that  the  plaintiff  is  entitled  to  the  worth  of  his  labor,  without 
any  regard  to  the  rights  of  the  other  party.  It  will  not  be  denied 
that  it  is  a  matter  of  great  consequence  that  men  who  have  means 
and  money  to  employ  labor  should  be  at  liberty  to  employ  the  same 
with  a  view  to  their  own  interests.  This  end  is  totally  defeated  if  it 
be  true  that  the  other  party  has  a  right  to  substitute  other  labor  as 
to  kind  and  quality,  and  time  too,  to  suit  his  own  interests  best,  and 
compel  the  other  party  to  pay  therefor  so  much  as  it  may  be  worth. 
But  the  argument  is  that  if  it  is  worth  little  or  nothing,  little  or 
nothing  will  be  allowed.  Can  it  be  right  and  lawful  to  compel  the 
defendant  to  be  taxed  with  the  expenses  and  trouble  of  a  lawsuit  to 
shew  that  the  work  was  worth  little  or  nothing,  and  if  the  work  was 
worth  anything  at  all  for  any  purpose,  the  defendant  must  pay  for  it, 
and  the  costs  too,  when  the  plaintiff's  only  merit  is  that  he  has  worked 
and  labored,  but  contrary  to  his  agreement  and  contrary  to  the  wish 
and  interest  of  his  employer.  The  law  as  laid  down  by  Buller  in 
Keeks  case  has  no  reason  in  it  as  there  stated. 

It  may  in  truth  have  been  a  better  case  than  it  seems  to  have 
been:  it  may  have  been  that,  as  to  the  alteration  of  the  form  of  the 
work  it  was  proved  that  the  defendant  asrreed  to  that ;  if  that  were  so, 
then  the  substituted  agreement  would  in  truth  be  the  agreement  of 
the  parties,  and  if  that  were  proved  thiMi  tlie  iilaintiff  ought  to  recover 
if  ho  has  executed  this  new  agreement  with  the  remaining  part  of  the 
old  one. 


746  BLOOD  V.    WILSON.  [BOOK  II. 

We  hold  the  law  to  be,  that  where  there  is  a  special  agreement  the 
party  who  is  to  execute  it  must  do  so  before  he  can  recover  anything. 
And  if  there  be  subsequent  modifications  of  the  agreement  so  as  to 
change  the  quantity,  manner  or  quality  of  the  work,  then  when  this  is 
proved,  the  modified  agreement  may  be  engrafted  on  the  old  bargain, 
so  as  to  make  a  good  agreement  and  may  then  when  executed  be 
recovered  on.  As  to  the  mode  of  proof  there  is  no  more  difficulty  in 
this  case  than  in  any  other.  If  a  man  be  present  while  the  work 
progresses  and  makes  no  objection  to  an  alteration  which  is  proved 
to  have  been  seen  and  known  by  him,  this  may  be  some  evidence  that 
he  agreed  to  the  alteration.  Subsequent  use  may  sometimes  be  strong 
evidence  and  sometimes  very  weak.  But  let  this  matter  be  as  it  may, 
the  proof  lies  on  the  plaintiff,  and  he  must  make  it  out,  as  he  must  in 
every  other  material  case. 

We  are  of  opinion  the  court  erred  in  the  2d  and  3rd  instruction  given 
for  the  plaintiff.  The  judgment  of  the  court  below  is  reversed — the 
cause  is  remanded.^ 


BLOOD   V.    WILSON. 

Supreme  Judicial  Court  of  Massachusetts,  1886. 

[141  Massachusetts,  25.] 

Morton,  C.  J.^  It  is  well  settled  in  this  commonwealth,  that  when 
a  special  contract  has  not  been  fully  performed,  but  the  plaintiff  has 
in  good  faith  done  what  he  believed  to  be  a  compliance  witli  tlie  con- 
tract, and  has  thus  rendered  a  benefit  to  the  defendant,  he  can  re- 
cover the  value  of  his  services  not  exceeding  the  contract  price,  after 
deducting  the  damages  which  the  defendant  has  sustained  by  the 
breach  of  the  stipulations  of  the   contract.      Ilayward    v.   Leonard, 

7  Pick.  181 ;  Reed  v.  Scituate,  7  Allen,  141 ;  Atkins  v.  Barnstable, 
97  Ma.ss.  428;  Denham  v.  Bryant,  13!)  Mass.  110. 

The  instructions  at  the  trial,  to  which  the  defendant  excepted, 
were  in  compliance  with  ibis  nilc,  ;ind  were  correct. 

PJ.rrr'j)tions  overruled.^ 

'Notwithstanilin-.'  the  passapp  qiuitcd  in  tlio  j)riiicipal  case  from  lUiller's 
Nisi  Prius,  l.^iJa,  the  Knfjlish  courts  liavo  coiisisloiilly  refused  to  follow  the 
reasonable  doctrine  to  which  IUi.i.ku  lent  the  weifjlit  of  his  fjreat  autliority.  See 
Ellis  V.  Ha?nlen  (1810)  .3  Taunt,  .'i'i  per  Sir  James  Manskiei.d,  C  -I.  (not  to 
be  confused  with  the  ilhistrioiis  Karl  of  that  name)  ;   Munro  r.   I'.utt.    (1858) 

8  E.  &  B.  7.38. 

The  statement  of  the  case  is  omitted. — Kn. 

'For  further  authorities  on  the  measure  of  recovery  in  Massachusetts,  see 
Ilayward  v.  Leonard  (1828)  7  Pick.  181.  187  S.  ('.  11)  Am.  Dec.  2fi8,  and  note, 
272-282;  AnjniH  v.  Scully  (l!)00)  176  iMaas.  357;  CJillis  v.  Cabe  (1901)  177 
Mass.  584.— E». 


CHAP.    II.]  PINCHES    V.    SWEDISH    CHURCH.  747 


PINCHES  V.   THE  SWEDISH  EVANGELICAL  LUTHERAN 

CHURCH. 

Supreme  Court  of  Errors  of  Connecticut^  1887. 

[55  Connecticut,  183.] 

Action  to  recover  for  work  done  and  materials  furnished  in  erect- 
ing a  church  edifice  for  the  defendants;  brought  to  the  Superior 
Court  in  Hartford  County,  and  tried  to  the  court  before  Torrance,  J. 
Facts  found  and  judgment  rendered  for  the  plaintiff,  and  appeal  by 
the  defendants.    The  case  is  fully  stated  in  the  opinion. 

Beardsley,  J.  The  plaintifE  claims  to  recover  upon  the  counts  for 
work  and  materials  furnished  in  the  erection  of  a  church  edifice  for 
the  defendants.  A  written  contract  was  entered  into  by  the  parties, 
providing  that  the  plaintiff  should  erect  the  edifice  upon  the  land  of 
the  defendants,  in  accordance  with  certain  plans  and  specifications. 
The  plaintiff  completed  the  building  on  the  21st  day  of  January, 
1885,  when  the  defendants  entered  into  the  full  possession  and  occu- 
pancy of  the  same.  The  building  varies  from  the  requirements  of  the 
contract  in  several  material  particulars. 

The  ceiling  is  two  feet  lower,  the  windows  are  shorter  and  nar- 
rower, and  the  seats  are  narrower  than  the  specifications  require,  and 
there  are  some  other  variations  and  omissions.  The  defect  in  the 
height  of  the  ceiling  is  due  to  the  combined  error  of  the  plaintiff  and 
the  defendant's  architect. 

The  other  changes  and  omissions  occurred  through  the  inadvertence 
of  the  plaintiff  and  his  workmen.  The  defendants  knew  of  the  change 
in  the  height  of  the  ceiling  when  they  took  possession  of  the  building, 
and  of  the  changes  in  the  windows  and  seats  shortly  afterwards,  and 
objected  to  the  changes  as  soon  as  they  discovered  them. 

The  plaintiff,  in  doing  the  work  and  furnishing  the  materials, 
acted  in  good  faith,  and  the  building  as  completed  is  reasonably 
adapted  to  the  wants  and  requirements  of  the  defendants,  and  its  use 
is  beneficial  to  them. 

It  would  be  practically  impossible  to  make  the  building  conform  to 
the  contract  without  taking  it  partially  dowoi  and  rebuilding  it.  The 
defendants,  upon  the  trial  of  the  case,  offered  evidence  to  prove  the 
amount  it  would  cost  to  make  the  building  conform  to  the  contract, 
claiming  that  they  were  entitled  to  such  sum  as  damages.  The  court 
excluded  the  evidence,  and  the  only  error  assigned  is  the  exclusion  of 
that  evidence.  The  defendants'  claim  rests  upon  the  assumption 
that  the  liability  of  the  plaintiff  to  damages  is  not  affected  by  the  fact 
that  his  deviation  from  the  contract  was  unintentional,  nor  by  the  ad- 
vantageous use  of  the  building,  but  that  it  is  the  same  as  it  would 


748  PINCHES    V.    SWEDISH    CHURCH.  [bOOK    II. 

have  been  if  he  had  wilfully  departed  from  the  contract,  and  they  had 
rejected  the  building  and  received  no  ])enefit  from  it. 

The  defendants'  claim  is  undoubtedly  supported  by  decisions  of 
courts  of  eminent  authority  in  England  and  this  country,  which  hold 
that  no  recovery  can  be  had  for  labor  or  materials  furnished  under 
special  contract,  unless  the  contract  has  been  performed,  or  its  per- 
formance has  been  dispensed  with  by  the  other  party. 

The  hardship  of  this  rule  upon  the  contractor  who  has  undesignedly 
violated  his  contract,  and  the  inequitable  advantage  it  gives  to  the 
party  who  receives  and  retains  the  benefit  of  his  lal)or  and  materials, 
has  led  to  its  qualification ;  and  the  weight  of  authority  is  now  clearly 
in  favor  of  allowing  compensation  for  services  rendered  and  materials 
furnished  under  a  special  contract,  but  not  in  entire  conformity  with 
it,  provided  that  the  deviation  from  the  contract  was  not  wilful,  and 
the  other  party  has  availed  himself  of,  and  been  benefited  by,  such 
labor  and  materials;  and  as  a  general  rule  the  amount  of  such  com- 
pensation is  to  depend  upon  the  extent  of  the  benefit  conferred,  having 
reference  to  the  contract  price  for  the  entire  work.  Hayward  v.  Leon- 
ard, 7  Pick.  181;  Smith  v.  First  Cong.  Meeting  House,  8  Pick.  178; 
Moulton  V.  McOwen,  103  Mass.  591;  Kelly  v.  Town  of  Bradford,  33 
Verm.  35;  Corwin  v.  Wallace,  17  Iowa,  374;  White  v.  Oliver, 
3()  Maine,  92;  Dermott  v.  Jones,  23  Howard,  220;  Smith  v.  School 
District,  20  Conn.,  312;  Blakeslee  v.  Holt,  42  Conn.,  226;  Lucas  v. 
Gadwin,  3  Bingham,  N.  C.  737;  Chitty  on  Contracts,  569;  2  Greenl. 
Ev.,  §  104;  2  Parsons  on  Contracts,  523,  and  note  i. 

In  cases  where  only  some  additions  to  the  work  are  required  to 
finish  it  according  to  the  contract,  or  where,  as  in  the  case  of  Blakes- 
lee V.  Holt,  the  defects  in  it  may  be  remedied  at  a  reasonable  expense, 
it  seems  proper  to  deduct  from  the  contract  price  the  sum  which  it 
would  cost  to  complete  it,  as  was  done  in  that  case. 

In  the  present  case  the  result  of  the  plaintiff's  labor  and  materials 
is  a  structure  adapted  to  the  purpose  for  which  it  was  built,  and  of 
which  the  defendants  are  in  the  use  and  enjoyment,  but  which  can- 
not be  made  to  conform  to  tbe  special  contract,  except  l)y  an  expendi- 
ture which  would  probably  deprive  the  plaintiff  of  any  compensation 
for  his  labor. 

We  think  that  the  court  below  properly  deducted  from  the  con- 
tract price  the  amount  of  the  diminution  in  the  value  of  the  building 
by  reason  of  the  plaintiff's  deviation  from  the  contract. 

There  is  no  error. 

In  this  opinion  Park,  C.  J.,  and  Carpenter,  J.,  concurred;  Par- 
dee and  LooMis,  JJ.,  dissented. 


CHAP.    II,]  M'MILLAN    V.    VANDERLIP.  749 

ANONYMOUS. 

Michaelmas  Common  Pleas,  1470. 
[Year  Booh  49  Hen.  VI,  folio  18,  placitum,  22.] 

Debt  brought  by  a  priest,  for  that  he  was  retained  with  the  defend- 
ant to  sing  for  the  soul  of  one  C  for  a  year  for  ten  marks.  The  de- 
fendant said  (in  reply)  that  within  the  year  the  plaintiff  departed 
from  his  service.  Whereupon  for  the  plaintiff  it  was  argued  that  the 
defendant  must  show  at  what  time  the  plaintiff  departed  from  his 
service,  and  pay  for  the  time  that  he  was  in  his  service;  and  if  the 
plaintiff  served  him  for  half  a  year,  he  should  have  five  marks ;  etc. 

Choke,  J.  This  duty  is  entire,  and  he  must  serve  him  for  a  year, 
or  otherwise  he  shall  not  have  his  salary;  and  he  cannot  demand  it 
until  he  has  served  him.^ 


M'MILLAN  V.  VANDERLIP. 

Supreme  Court  of  New  York,  1815. 

[12  Johnson,  165.^] 

In  error,  on  certiorari,  from  a  Justice's  Court.  Vanderlip  sued  /. 
and  A.  M'Millan,  by  summons,  before  a  justice,  in  an  action  on  the 
case.  He  declared,  stating  his  demand,  September  26,  1812,  to  be  for 
"spinning  845  runs  of  yarn,  at  3  pence  per  run;  for  damage  for  not 
finding  a  sizable  jenny,  10  dollars ;  for  damage  for  not  finding  a  suf- 
ficient instructor,  10  dollars;  for  damage  for  spinning  bad  roving,  10 
dollars ;  for  damage  for  time  lost,  for  want  of  roving,  5  dollars." 

The  defendant  pleaded  the  general  issue,  and  there  was  a  trial  by 
jury. 

The  plaintiff  proved  that  he  had  worked  for  the  defendants  below, 
11  or  13  weeks;  and  the  witness  stated,  that  the  plaintiff  said  he  was 
to  work  one  year,  to  spin  at  three  cents  per  run ;  but  should  not  make 
wages,  the  roving  was  so  bad.  Another  witness  said  he  understood 
from  the  defendants,  that  the  plaintiff  had  agreed  to  work  with  the 
defendants,  10^  months,  at  3  cents  per  run ;  and  an  account  was  pro- 
duced, dated  Septemher  1,  1812,  in  which  the  defendants  charged  the 
plaintiff  three  dollars,  paid  to  him;  and  credited  him  with  spinning 
845  runs  of  yarn.    One  of  the  witnesses  said  he  was  to  have  5  cents  a 

'The  principal  case  is  somewhat  freely  translated  and  abridged  so  as  to  bring 
out  the  point  involved. — Ed. 

^The  case  is  likewise  reported  in  7  Am.  Dec.  299,  and  see  note,  302. — Ed. 


750  m'millan  v.  vaxderlip.  [book  ii. 

run,  and  his  board ;  and  he  said  he  understood,  from  all  parties,  that 
Vandrrlip  was  to  have  3  cents  per  run,  and  work  10^  months.  In  an 
additional  return,  it  was  stated  by  the  justice,  that  it  was  understood 
by  him,  and  he  believed  by  the  jury,  that  the  plaintiff  below  left  the 
service  of  the  defendants  below,  at  the  date  of  the  account ;  though  he 
did  not  recollect  that  it  was  either  proved  or  admitted.  The  jury 
found  a  verdict  for  the  plaintiff  below,  for  22  dollars  and  35  cents;  on 
which  the  justice  gave  judgment. 

Spencer^  J.,  delivered  the  opinion  of  the  Court.  The  question  is, 
whether  the  contract  of  the  defendant  in  error  is  an  entire  contract, 
operating  as  a  condition  precedent;  and,  as  such,  necessary  to  be  per- 
formed before  the  plaintiffs  in  error  were  liable ;  or  whether  we  are  to 
consider  the  agreement,  to  pay  three  cents  per  run,  as  a  distinct  agree- 
ment, on  the  one  side,  and  the  promise  to  work  for  10^  months,  as  in- 
dependent and  unconnected  with  the  rate  at  which  the  defendant  in 
error  was  to  spin  the  yarn.  It  has  been  well  observed  by  Serjeant  IFiZ- 
liams,  in  a  note  to  Pordage  and  Cole,  1  Saun.  320.  note  4,  that  the 
old  cases  proceeded  on  very  subtle  and  nice  distinctions;  and  it  might 
have  been  added,  that  some  of  them  were  carried  to  a  length  that 
worked  great  injustice,  and  defeated  the  intentions  and  understand- 
ings of  men,  not  versed  in  nice  and  technical  rules.  To  show  to  what 
unreasonable  results  the  Courts  arrived,  I  will  barely  mention  two 
cases.  A.  agreed  to  serve  B.  a  year,  and  B.  agreed  to  pay  him  10 
pounds;  and  it  was  held,  A.  might  maintain  an  action  against  B.  for 
the  money,  before  any  service.  Again,  A.  covenanted  with  B.  to  marry 
his  daughter;  and  B.  covenanted  to  convey  an  estate  to  A.  and  the 
daughter,  in  special  tail;  though  A.  marry  another  woman,  or  the 
daughter  marries  another  man,  A.  may  maintain  an  action  against  B. 
on  the  covenant. 

The  good  sense  of  modern  times  has  exploded  these  subtle  notions; 
and  contracts  are  now  expounded  according  to  the  real  intention  of 
the  parties:  thus,  in  Waddington  v.  Oliver,  5  Bos.  and  Puller,  2  N.  S. 
Gl,  the  plaintiff  sold  the  defendant  100  bags  of  hops,  at  5G  shillings 
per  hundred,  to  be  delivered  on  or  before  1st  January,  1805,  as  might 
be  agreeable  to  the  plaintiff.  On  the  12th  of  Dcrem})rr,  twelve  bags 
were  delivered,  and  payment  was  immediately  demanded  ;  and  on  re- 
fusal to  pay,  a  suit  was  brought.  The  Court  were  clearly  of  opinion, 
that  the  contract  was  entire,  and  could  not  be  split;  and  that  the 
plaintiff  had  no  rigbt  to  bring  an  action  until  tlie  wOiole  quantity  was 
delivered,  or  until  th(!  time  for  delivery  of  the  whole  had  arrived.  The 
3d  note  of  Serjeant  Williams  io  2(1  Saun.  3.')2,  furnishes  a  variety  of 
cases,  showing  the  grounds  on  which  the  latter  cases  have  placed  the 
(lepenrlency  or  independency  of  contracts.  There  are  many  distinc- 
tions, not  necessary  now  to  be  noticed  ;  but  the  object  of  them  is  to 
promote  substantial  justice,  by  ascertaining  the  intention  of  the  par- 


CHAP.    II.]  M'MILLAN    V.    VANDERLIP.  751 

ties,  and  carrying  them  into  clTect,  without  a  literal  adherence  to 
words,  or  the  order  of  sentences. 

It  is  evident  to  my  mind,  that  the  parties  before  us  intended  that 
Vanderlip  should  serve  the  M'Millans  for  lOi  months,  and  that  he 
should  be  paid  3  cents  for  each  run  of  yarn  spun  by  him;  and  that 
they  intended  this  as  one  entire  contract.  The  M'MiUans  could  not 
mean  to  have  paid  by  the  run;  and  to  subject  themselves  to  a  suit, 
toties  quoties.  We  have  a  right  to  infer  from  the  plaintiff's  declara- 
tion in  the  Court  below,  as  well  as  from  the  fact  that  one  of  the  wit- 
nesses was  to  have  5  cents  a  run,  that  VaiidcrUp  was  a  novitiate  in 
spinning;  and,  consequently,  that  he  would  be  more  profitable  to  his 
employers  in  the  latter  part  of  the  term.  If  the  contract  was  entire, 
and  looked  as  well  to  the  price  per  run,  as  to  the  time  of  service,  it 
necessarily  formed  a  condition  precedent;  and  then,  Vanderlip  could 
not  sue  until  he  had  performed  his  contract  of  service,  or  until  the 
period  within  which  it  wa^  to  be  performed  had  elapsed. 

The  latter  qualification  is  drawn  from  the  case  of  Waddington  v. 
Oliver:  though,  I  confess,  I  do  not  perceive  the  grounds  on  which  it 
rests.  It  appears  to  me,  that  the  construction  I  have  put  on  this  con- 
tract, is  not  only  warranted  by  the  agreement  itself,  but  that  it  is  a 
very  useful  and  salutary  one.  The  general  practice,  in  hiring  laborers 
or  artisans,  is,  for  6  or  12  months,  at  so  much  per  month:  the  farmer 
hires  a  man  for  6  or  12  months,  at  monthly  wages;  and  he  takes  his 
chance  of  the  good,  with  the  bad  months.  It  is  well  known,  that  the 
labor  of  a  man,  during  the  summer  months,  is  worth  double  the  labor 
of  the  same  man  in  winter ;  but  upon  the  principles  contended  for  by 
the  defendant's  counsel,  if  the  farmer  hires  in  the  autumn,  for  twelve 
months,  at  monthly  wages,  the  laborer  may  quit  his  employ  on  the 
first  of  May,  and  sue  for  his  wages,  and  recover  them ;  leaving  the 
farmer  the  poor  resort  of  a  suit  for  damages.  The  rule  contended  for 
holds  out  temptations  to  men  to  violate  their  contracts.  The  stipula- 
tion of  monthly  pay,  or,  in  this  case,  pay  by  the  run,  does  not  disjoin 
the  contract:  it  is  adopted  as  the  means  only  of  ascertaining  the  com- 
pensation, and  does  not  render  it  less  entire.  The  case  from  1  Eoll. 
Abr.  29.  1.  36.  is  a  very  bald  case;  and  the  case  decided  by  Hale,  at 
Norfolk,  in  1662,  1  Com.  Dig.  Action,  F.,  is  a  very  unreasonable  de- 
cision. The  contract  was  to  deliver  so  much  corn,  before  Michaelmas, 
for  so  much  the  coomh;  and  a  part  only  was  delivered;  and  he  ruled, 
that  assumpsit  lay  for  so  much,  after  Michaelmas;  for,  though  the 
agreement  was  entire,  the  several  delivery  makes  several  contracts. 
When  part  of  the  corn  was  delivered,  towards  the  fulfilment  of  an  en- 
tire contract,  and  for  the  convenience  of  the  party  delivering,  it  is 
extraordinary  that  such  delivery  should  have  annulled  the  contract ; 
but  it  did  not ;  for  the  case  adds :  "and  the  defendant  has  a  remedy  for 
the  residue."  This  could  not  be,  unless  the  contract  remained  un- 
affected by  the  several  delivery.     These  are  cases  decided  before  the 


752  TURNER  V.    ROBINSON   AND   ANOTHER.  [BOOK   II. 

Courts  adopted  the  true  method  of  considering  contracts,  in  relation 
to  their  dependency  or  independency. 

The  entry  in  the  plaintiff's  books  proves  nothing;  for,  certainly, 
they  were  to  keep  an  account  of  the  quantity  spun ;  and  if,  for  the  de- 
fendant's accommodation,  they  were  willing  to  advance  cash  to  him, 
that  did  not  vary  the  contract,  or  show  that  they  considered  themselves 
liable  to  pay  before  the  end  of  the  term. 

Judgment  reversed.^ 


TURNER  V.  ROBmSON  AND  ANOTHER. 

King's  Bench,  1833. 

[5  Barnewall  and  Adolphus,  789.] 

Assumpsit  for  work  and  labor.  At  the  trtal  before  Denman,  C.  J., 
at  the  London  sittings  after  Trinity  term,  1833,  the  following  facts 
appeared.  The  defendants  were  silk  manufacturers;  the  plaintiff 
acted  as  their  foreman  from  January  to  June,  1831,  and  sought  to 
recover  in  this  action  a  remuneration  for  his  services  during  that 
period.  The  evidence  as  to  the  amount  of  wages  was,  that  it  had 
been  agreed  between  the  plaintiff  and  defendants,  that  the  plaintiff 
was  to  have  wages  at  the  rate  of  £80  per  year.     In  June,  1831,  the 

'The  principal  case  represents  the  weifilit  thoii<>;]i  not  perliaps  the  trend 
of  authority  in  this  country.  Among  the  many  authorities  in  accord,  see  the 
following: 

Stark  V.  Parker  (1824)  2  Pick.  207;  The  Alexander  (1894)  912,  914;  Peck 
V.  Burr  (1851)  10  N.  Y.  297;  Smith  v.  Brady  (1858)  17  N.  Y.  173  (especially 
the  elaborate  and  careful  opinion  of  Comstock,  J.,  pp.  179-190)  ;  Wolfe  v. 
Howes  (1859)  20  N.  Y.  197,  220;  Tipton  v.  Feitner  (1859)  20  N.  Y.  423; 
Cunningham  v.  Jones  (1859)  20  N.  Y.  480;  Patterson  v.  Kelly  (1891)  14 
X.  Y.  Supp.  118. 

The  principle  underlying  these  and  like  decisions  is  admirably  stated  in  the 
following  passage  from  Tipton  v.  Feitner,  supra:  "There  is  another  class  aris- 
ing out  of  contracts  for  services,  where  the  party  emi)loyed  agreed  to  serve  for 
a  fixed  period,  or  to  execute  a  particular  work,  and  was  to  be  paid  by  the  week, 
or  month,  or  by  some  rule  adjusted  by  reference  to  the  separate  parcels  of  the 
work  j)crformcd,  in  which  it  has  been  uniformly  held — except  in  one  case, 
where  the  defatilt  was  occasioned  by  the  death  of  the  party  employed — that 
the  whole  of  the  service  must  be  performed  in  order  to  warrant  a  recovery  for 
any  part:  McMillan  v.  Vanderlip,  12  Johns.  105;  Cunningham  v.  Morrell  10  id. 
203 ;  Jennings  v.  Camp,  13  Johns.  94 ;  Reab  t'.  Moor  19  id.  337  ;  Lantry  n.  Parks, 
8  Cow.  03;   Morell  v.  Burns,  4  Denio,  121;  Wolfe  v.  Howes.  20  N.  Y.  197." 

For  further  citation  of  authorities  in  the  various  jurisdictions,  see  Keener's 
Qurtsi-f Contracts,  21.'),  n.  2. 

For  cases  contra,  see  note  to  Britten  v.  Turner  (1834)  0  N.  H.  481,  post, 
753,  701.— Ki). 


CHAP.    II.]  BRITTON    V.    TURNER.  T53 

plaintiff  was  dismissed  by  the  defendants,  for  having  advised  and 
assisted  their  apprentice  to  quit  their  service  and  go  to  America,  and 
for  that,  the  defendants  had  brought  an  action  against  the  plaintiff, 
.and  recovered  40s.  damages.  It  was  contended  for  the  defendants, 
that  it  must  be  taken  on  this  evidence,  that  the  plaintiff  had  been 
hired  for  a  year,  and  having  been  rightfully  discharged  from  their 
service  for  misconduct  during  the  year,  was  not  entitled  to  recover 
wages  pro  rata,  and  Spain  v.  Arnott  was  cited.  The  Lord  Chief 
Ji^'stice  was  of  opinion  that  there  was  nothing  to  repel  the  ordinary 
presumption,  that  the  servant  was  hired  for  a  year;  and  that  being 
so,  the  whole  wages  were  forfeited  before  the  term  expired,  by  his 
misconduct,  whereby  the  defendants  were  preventd  from  having  his 
services  for  the  whole  year.  He  therefore  directed  a  nonsuit,  reserving 
liberty  to  move  to  enter  a  verdict  for  the  plaintiff. 

Law  in  this  term  moved  to  enter  a  verdict.  There  was  no  proof  that 
the  plaintiff  was  hired  for  an  entire  year.  The  evidence  as  to  that 
was  only  that  he  was  to  have  wages  at  the  rate  of  £80  per  year.  Be- 
sides, here  the  defendants  had  already  recovered  against  the  plaintiff 
for  his  misconduct  in  enticing  the  apprentice  from  their  service. 
[Parke,  J.  The  prima  facie  presumption  was,  that  the  plaintiff  was 
hired  for  a  year ;  and  there  was  nothing  to  rebut  that  presumption : 
and  having  violated  his  duty  before  the  year  expired,  so  as  to  prevent 
the  defendants  from  having  his  services  for  the  whole  year,  he  cannot 
xecover  wages  pro  rata.^ 

The  court^  refused  the  rule. 


BRITTON  V.  TURNER. 

Superior  Court  of  Judicature  of  New  Hampshire,  1834. 

[6  New  Hampshire,  481.^] 

Assumpsit  for  work  and  labor  performed  by  the  plaintiff,  in  the 
service  of  the  defendant,  from  March  9,  1831,  to  December  27,  1831. 

The  declaration  contained  the  common  counts,  and  among  them  a 
count  in  quantum  meruit  for  the  labor,  averring  it  to  be  worth  $100. 

At  the  trial  in  the  C.  C.  Pleas,  the  plaintiff  proved  the  performance 
of  the  labor  as  set  forth  in  the  declaration. 

The  defence  was  that  it  was  performed  under  a  special  contract, — 
that  the  plaintiff  agreed  to  work  one  year,  from  some  time  in  March, 

^Denman,  C.  J.;  Parke,  Tainton,  and  Patterson,  JJ. 

And  see,  Sinclair  v.  Bowles  (1829)  9  B.  &  C.  92.  The  principal  case  repre- 
sents the  English  law  on  this  difficult  question,  and  is  also  in  accord  with  the 
weight  of  American  authority.     See  note  to  the  preceding  case. — En. 

^Likewise  reported  in  26  Am.  Dee.  713,  and  see  note  thereto,  722. — Ed. 


75-i  BRITTON    V.    TURNER.  [BOOK   II. 

1831,  to  March,  1833,  and  that  the  defendant  was  to  pay  him  for 
said  year's  labor  the  sum  of  $120 ;  and  the  defendant  offered  evidence 
tending  to  show  that  such  was  the  contract  under  which  the  work 
was  done. 

Evidence  was  also  offered  to  show  that  the  plaintiff  left  the  defend- 
ant's service  without  his  consent,  and  it  was  contended  by  the  defend- 
ant that  the  plaintiff  had  no  good  cause  for  not  continuing  in  his 
employment. 

•There  was  no  evidence  offered  of  any  damage  arising  from  the 
plaintiff's  departure,  farther  than  was  to  be  inferred  from  his  non- 
fulfilment  of  the  entire  contract. 

The  court  instructed  the  jury,  that  if  they  were  satisfied  from  the 
evidence  that  the  labor  was  performed,  under  a  contract  to  labor  a 
year,  for  the  sum  of  $120,  and  if  they  were  satisfied  that  the  plaintiff 
labored  only  the  time  specified  in  the  declaration,  and  then  left  the 
defendant's  service,  against  his  consent  and  without  any  good  cause, 
yet  the  plaintiff  was  entitled  to  recover,  under  his  quantum  meruit 
count,  as  much  as  the  labor  he  performed  was  reasonably  worth ;  and 
under  this  direction  the  jury  gave  a  verdict  for  the  plaintiff  for  the 
sum  of  $95. 

The  defendant  excepted  to  the  instructions  thus  given  to  the  jury. 

Parker,  J.,  delivered  the  opinion  of  the  court. 

It  may  be  assumed,  that  the  labor  performed  by  the  plain|;iff,  and 
for  which  he  seeks  to  recover  a  compensation  in  this  action,  was 
commenced  under  a  special  contract  to  labor  for  the  defendant  the 
term  of  one  year,  for  the  sum  of  $120,  and  that  the  plaintiff  has 
labored  but  a  portion  of  that  time,  and  has  voluntarily  failed  to  com- 
plete the  entire  contract. 

It  is  clear,  then,  that  he  is  not  entitled  to  recover  upon  the  con- 
tract itself,  because  the  service,  which  was  to  entitle  him  to  the  sum 
agreed  upon,  has  never  been  performed. 

But  the  question  arises,  can  the  plaintiff  under  these  circumstances 
recover  a  reasonable  sum  for  the  service  he  has  actually  performed, 
under  the  count  in  quantum  meruit? 

Upon  this,  and  questions  of  a  similar  nature,  the  decisions  to  be 
found  in  the  books  are  not  easily  reconciled. 

It  has  been  held,  upon  contracts  of  this  kind  for  labor  to  be  per- 
formed at  a  specified  price,  tliat  the  party  who  voluntarily  fails  to 
fulfil  the  contract  by  performing  the  whole  labor  contracted  for, 
is  not  entitled  to  recover  anything  for  the  labor  actually  performed, 
however  much  he  may  have  done  towards  the  performance ;  and  this 
has  been  considered  the  settled  rule  of  law  upon  this  subject. 

Stark  V.  Parker,  2  Pick.  267;  Faxon  v.  Mansfield,  2  Mass.  147; 
McMillen  v.  Vandcrlip.  12  Johns.  105;  Jennings  v.  Camp,  13  Johns. 
!H;  Heab  v.  Moor,  ID  Johns.  337;  Lantry  v.  Parks,  8  Cow.  63;  Sin- 
clair V.  Bowles,  9  B.  &  C.  92;  Spain  v.  Arnott,  2  Stark.  N.  P.  256. 


CHAP.    II.]  BRITTON   V.   TURNER.  755 

That  such  rule  in  its  operation  may  be  very  unequal,  not  to  say 
unjust,  is  apparent. 

A  party  who  contracts  to  perform  certain  specified  labor,  and  who 
breaks  his  contract  in  the  first  instancd,  without  any  attempt  to  per- 
form ft,  can  only  be  made  liable  to  pay  the  damages  which  the  other 
party  has  sustained  by  reason  of  such  non-performance,  which  in 
many  instances  may  be  trifling;  whereas  a  party  who  in  good  faith 
has  entered  upon  the  performance  of  his  contract,  and  nearly  com- 
pleted it,  and  then  abandoned  the  further  performance — although 
the  other  party  has  had  the  full  benefit  of  all  that  has  been  done,  and 
has  perhaps  sustained  no  actual  damage — is  in  fact  subjected  to  a 
loss  of  all  which  has  been  performed,  in  the  nature  of  damages  for 
the  non-fulfilment  of  the  remainder,  upon  the  technical  rule,  that  the 
contract  must  be  fully  performed  in  order  to  a  recovery  of  any  part 
of  the  compensation. 

By  the  operation  of  this  rule,  then,  the  party  who  attempts  perform- 
ance may  be  placed  in  a  much  worse  situation  than  he  who  wholly 
disregards  his  contract,  and  the  other  party  may  receive  much  more, 
by  the  breach  of  the  contract,  than  the  injury  which  he  has  sustained 
by  such  breach,  and  more  than  he  could  be  entitled  to  were  he  seeking 
to  recover  damages  by  an  action. 

The  case  before  us  presents  an  illustration.  Had  the  plaintifE  in 
this  case  never  entered  upon  the  performance  of  his  contract,  the 
damage  could  not  probably  have  been  greater  than  some  small  expense 
and  trouble  incurred  in  procuring  another  to  do  the  labor  which  he 
had  contracted  to  perform.  But  having  entered  upon  the  perform- 
ance, and  labored  nine  and  a  half  months,  the  value  of  which  labor 
to  the  defendant  as  found  by  the  jury  is  $95,  if  the  defendant  can 
succeed  in  this  defence  he  in  fact  receives  nearly  five-sixths  of  the 
value  of  a  whole  year's  labor,  by  reason  of  the  breach  of  contract  by 
the  plaintiff,  a  sum  not  only  utterly  disproportionate  to  any  probable, 
not  to  say  possible,  damage  which  could  have  resulted  from  the  neglect 
of  the  plaintiff  to  continue  the  remaining  two  and  a  half  months, 
but  altogether  beyond  any  damage  which  could  have  been  recovered 
by  the  defendant,  had  the  plaintiff  done  nothing  towards  the  fulfil- 
ment of  his  contract. 

Another  illustration  is  furnished  in  Lantry  v.  Parks,  8  Cow.  83. 
There  the  defendant  hired  the  plaintiff  for  a  year,  at  $10  per  month. 
The  plaintiff  worked  ten  and  a  half  months,  and  then  left,  saying  he 
would  work  no  more  for  him.  This  was  on  Saturday ;  on  Monday 
the  plaintiff  returned,  and  offered  to  resume  his  work,  but  the  defend- 
ant said  he  would  employ  him  no  longer.  The  court  held  that  the 
refusal  of  the  plaintiff  on  Saturday  was  a  violation  of  his  contract, 
and  that  he  could  recover  nothing  for  the  labor  performed. 

There  are  other  cases,  however,  in  which  principles  have  been 
adopted  leading  to  a  different  result. 


756  BRITTON    V.   TURNER.  [bOOK   II. 

It  is  said,  that  where  a  party  contracts  to  perform  certain  work, 
and  to  furnish  materials,  as,  for  instance,  to  build  a  house,  and  the 
work  is  done,  but  with  some  variations  from  the  mode  prescribed 
by  the  contract,  yet  if  the  other  party  has  the  benefit  of  the  labor 
and  materials  he  should  be  bound  to  pay  so  much  as  they  are  reason- 
ably worth.  2  Stark.  Ev.  97,  98 ;  Hayward  v.  Leonard,  7  Pick.  181 ; 
Smith  V.  First  Congregational  Meeting  House  in  Lowell,  8  Pick.  178 ; 
Jewell  V.  Schroeppel,  -4  Cow.  564;  Hayden  v.  Madison,  7  Green.  78; 
Bull.  N".  P.  139;  4  Bos.  &  Pul.  355;"  10  Johns.  36;  13  Johns.  97; 
7  East,  479. 

A  different  doctrine  seems  to  have  been  holden  in  Ellis  v.  Hamlen, 
3  Taunt.  53,  and  it  is  apparent,  in  such  cases,  that  if  the  house  has 
not  been  built  in  the  manner  specified  in  the  contract,  the  work  has 
not  been  done.  The  party  has  no  more  performed  what  he  contracted 
to  perform,  than  he  who  has  contracted  to  labor  for  a  certain  period, 
and  failed  to  complete  the  time. 

It  is  in  truth  virtually  conceded  in  such  cases  that  the  work 
has  not  been  done,  for  if  it  had  been,  the  party  performing  it  would 
be  entitled  to  recover  upon  the  contract  itself,  which  it  is  held  he 
cannot  do. 

Those  cases  are  not  to  be  distinguished,  in  principle,  from  the 
present,  unless  it  be  in  the  circumstance  that  where  the  party  has 
contracted  to  furnish  materials,  and  do  certain  labor,  as  to  build  a 
house  in  a  specified  manner,  if  it  is  not  done  according  to  the  con- 
tract, the  party  for  whom  it  is  built  may  refuse  to  receive  it, — elect 
to  take  no  benefit  from  what  has  been  performed ;  and  therefore  if  he 
does  receive,  he  shall  be  bound  to  pay  the  value ;  whereas  in  a  con- 
tract for  labor,  merely,  from  day  to  day,  the  party  is  continually 
receiving  the  benefit  of  the  contract  under  an  expectation  that  it  will 
be  fulfilled,  and  cannot,  upon  the  breach  of  it,  have  an  election  to 
refuse  to  receive  what  has  been  done,  and  thus  discharge  himself  from 
payment. 

But  we  think  this  difference  in  the  nature  of  the  contracts  does  not 
Justify  the  application  of  a  different  rule  in  relation  to  them. 

The  party  who  contracts  for  labor  merely,  for  a  certain  period, 
does  so  with  full  knowledge  that  he  must,  from  the  nature  of  the 
case,  be  accepting  part  performance  from  day  to  day,  if  the  other 
party  commences  the  performance,  and  with  knowledge  also  that 
the  other  may  eventually  fail  of  completing  the  entire  term. 

If  under  such  circumstances  he  actually  receives  a  benefit  from  the 
labor  performed,  over  and  above  the  damage  occasioned  by  the  failure 
to  complete,  there  is  as  much  reason  why  he  should  pay  the  reasonable 
worth  of  what  has  thus  been  done  for  his  benefit,  as  there  is  when 
he  enters  and  occupies  the  house  which  has  been  built  for  him,  but 
not  according  to  the  stipulations  of  the  contract,  and  which  he  per- 
haps enters,  not  because  he  is  satisfied  with  what  has  been  done,  but 


CHAP.    II.j  BEITTON    V.   TURNER.  757 

because  circumstances  compel  him  to  accept  it  such  as  it  is,  that  he 
should  pay  for  the  value  of  the  house. 

Where  goods  are  sold  upon  a  special  contract  as  to  their  nature, 
quality,  and  price,  and  have  been  used  before  their  inferiority  has 
been  discovered,  or  other  circumstances  have  occurred  which  have 
rendered  it  impracticable  or  inconvenient  for  the  vendee  to  rescind 
the  contract  in  toto.  it  seems  to  have  been  the  practice  formerly  to 
allow  the  vendor  to  recover  the  stipulated  price,  and  the  vendee 
recovered  by  a  cross  action  damages  for  the  breach  of  the  contract. 
"But  according  to  the  later  and  more  convenient  practice,  the  vendee 
in  such  case  is  allowed,  in  an  action  for  the  price,  to  give  evidence 
of  the  inferiority  of  the  goods,  in  reduction  of  damages,  and  the 
plaintiff  who  has  broken  his  contract  is  not  entitled  to  recover  more 
than  the  value  of  the  benefits  which  the  defendant  has  actually  derived 
from  the  goods;  and  where  the  latter  has  derived  no  benefit,  the 
plaintiff  cannot  recover  at  all."  2  Stark.  Ev.  640,  642;  Okell  v. 
Smith,  1  Stark.  N.  P.  107. 

So  where  a  person  contracts  for  the  purchase  of  a  quantity  of 
merchandise,  at  a  certain  price,  and  receives  a  delivery  of  part  only, 
and  he  keeps  that  part,  without  any  offer  of  a  return,  it  has  been 
held  that  he  must  pay  the  value  of  it.  Shipton  v.  Casson,  5  B.  &  C. ; 
Baker  v.  Sutton,  Com.  Dig.  Action  F ;  1  Camp.  55,  note. 

A  different  opinion  seems  to  have  been  entertained  (Waddington  v. 
Oliver,  5  B.  &  P.  61),  and  a  different  decision  was  had.  Walker  v. 
Dixon,  2  Stark.  N".  P.  281. 

There  is  a  close  analogy  between  all  these  classes  of  cases,  in  which 
such  diverse  decisions  have  been  made. 

If  the  party  who  has  contracted  to  receive  merchandise,  takes  a  part 
and  uses  it,  in  expectation  that  the  whole  will  be  delivered,  which  is 
never  done,  there  seems  to  be  no  greater  reason  that  he  should  pay 
for  what  he  has  received,  than  there  is  that  the  party  who  has  received 
labor  in  part,  under  similar  circumstances,  should  pay  the  value  of 
what  has  been  done  for  his  benefit. 

It  is  said  that  in  those  cases  where  the  plaintiff  has  been  permitted 
to  recover  there  was  an  acceptance  of  what  had  been  done.  The 
answer  is.  that  where  the  contract  is  to  labor  from  day  to  day,  for  a 
certain  period,  the  party  for  whom  the  labor  is  done  in  truth  stipulates 
to  receive  it  from  day  to  day,  as  it  is  performed,  and  although  the 
other  may  not  eventually  do  all  he  has  contracted  to  do,  there  has 
been,  necessarily,  an  acceptance  of  what  has  been  done  in  pursuance 
of  the  contract,  and  the  party  must  have  understood  when  he  made 
the  contract  that  there  was  to  be  such  acceptance. 

If  then  the  party  stipulates  in  the  outset  to  receive  part  perform- 
ance from  time  to  time,  with  a  knowledge  that  the  whole  may  not 
be  completed,  we  see  no  reason  why  he  should  not  equally  be  holden 
to  pay  for  the  amount  of  value  received,  as  where  he  afterwards  takes 


758  BRITTON   V.   TURNER.  [BOOK   II, 

the  benefit  of  what  has  been  done,  with  a  knowledge  that  the  whole 
which  was  contracted  for  has  not  been  performed. 

In  neither  case  has  the  contract  been  performed.  In  neither  can  an 
action  be  sustained  on  the  original  contract. 

In  both  the  party  has  assented  to  receive  what  is  done.  The  only 
difference  is,  that  in  the  one  case  the  assent  is  prior,  with  a  knowledge 
that  all  may  not  be  performed,  in  the  other  it  is  subsequent,  with  a 
knowledge  that  the  whole  has  not  been  accomplished. 

We  have  no  hesitation  in  holding  that  the  same  rule  should  be 
applied  to  both  classes  of  cases,  especially  as  the  operation  of  the 
rule  will  be  to  make  the  party  who  has  failed  to  fulfil  his  contract, 
liable  to  such  amount  of  damages  as  the  other  party  has  sustained, 
instead  of  subjecting  him  to  an  entire  loss  for  a  partial  failure,  and 
thus  making  the  amount  received  in  many  cases  wholly  disproportion- 
ate to  the  injury.    1  Saund.  320,  c. ;  2  Stark.  Ev.  643. 

It  is  as  "hard  upon  the  plaintiff  to  preclude  him  from  recovering 
at  all,  because  he  has  failed  as  to  part  of  his  entire  undertaking," 
where  his  contract  is  to  labor  for  a  certain  period,  as  it  can  be  in  any 
other  description  of  contract,  provided  the  defendant  has  received 
a  benefit  and  value  from  the  labor  actually  performed. 

We  hold  then,  that  where  a  party  undertakes  to  pay  upon  a  special 
contract  for  the  performance  of  labor,  or  the  furnishing  of  materials, 
he  is  not  to  be  charged  upon  such  special  agreement  until  the  money 
is  earned  according  to  the  terms  of  it,  and  where  the  parties  have  made 
an  express  contract  the  law  will  not  imply  and  raise  a  contract 
different  from  that  which  the  parties  have  entered  into,  except  upon 
some  farther  transaction  between  the  parties. 

In  case  of  a  failure  to  perform  such  special  contract,  by  the  default 
of  the  party  contracting  to  do  the  service,  if  the  money  is  not  due 
by  the  terms  of  the  special  agreement  he  is  not  entitled  to  recover 
for  his  labor,  or  for  the  materials  furnished,  unless  the  other  party 
receives  what  has  been  done,  or  furnished,  and  upon  the  whole  case 
derives  a  benefit  from  it.  Taft  v.  Montague,  14  Mass.  282 ;  2  Stark. 
Ev.  644. 

But  if,  where  a  contract  is  made  of  such  a  character,  a  party  actu- 
ally receives  labor,  or  materials,  and  thereby  derives  a  benefit  and 
advantage,  over  and  above  the  damage  which  has  resulted  from  the 
breach  of  the  contract  by  the  other  party,  the  labor  actually  done, 
and  the  value  received  furnish  a  new  consideration,  and  the  law 
thereupon  raises  a  promise  to  pay  to  the  extent  of  the  reasonable 
worth  of  such  excess.  This  may  be  considered  as  making  a  new  case, 
one  not  within  the  original  agreement,  and  the  party  is  entitled 
to  "recover  on  his  new  case,  for  the  work  done,  not  as  agreed,  but 
yet  accepted  by  the  defendant."     1   Dane's  Abr.  224. 

If  on  such  failure  to  perform  tlie  whole,  the  nature  of  the  contract 
be  such  that  the  employer  can  reject  what  has  been  done,  and  refuse 


CHAP.    II.]  BRITTOX    V.    TURNER.  759 

to  receive  any  benefit  from  the  part  performance,  he  is  entitled  so  to 
do,  and  in  such  case  is  not  liable  to  be  charged,  unless  he  has  before 
assented  to  and  accepted  of  what  has  been  done,  however  much  the 
other  party  may  have  done  towards  the  performance.  He  has  in  such 
case  received  nothing,  and  having  contracted  to  receive  nothing  but 
the  entire  matter  contracted  for,  he  is  not  bound  to  pay,  because  his 
express  promise  was  only  to  pay  on  receiving  the  whole,  and  having 
actually  received  nothing  the  law  cannot  and  ought  not  to  raise  an 
implied  promise  to  pay.  But  where  the  party  receives  value, — takes 
and  uses  the  materials,  or  has  advantage  from  the  labor,  he  is  liable 
to  pay  the  reasonable  worth  of  what  he  has  received.  Farnsworth  v. 
Garrard,  1  Camp.  38.  And  the  rule  is  the  same  whether  it  was 
received  and  accepted  by  the  assent  of  the  party  prior  to  the  breach, 
under  a  contract  by  which,  from  its  nature,  he  was  to  receive  labor 
from  time  to  time  until  the  completion  of  the  whole  contract;  or 
whether  it  was  received  and  accepted  by  an  assent  subsequent  to  the 
performance  of  all  which  was  in  fact  done.  If  he  received  it  under 
such  circumstances  as  precluded  him  from  rejecting  it  afterwards, 
that  does  not  alter  the  case, — it  has  still  been  received  by  his  assent. 

In  fact  we  think  the  technical  reasoning,  that  the  performance  of 
the  whole  labor  is  a  condition  precedent,  and  the  right  to  recover 
an3^thing  dependent  upon  it;  that  the  contract  being  entire  there  can 
be  no  apportionment;  and  that  there  being  an  express  contract  no 
other  can  be  implied,  even  upon  the  subsequent  performance  of 
service. — is  not  properly  applicable  to  this  species  of  contract,  where 
a  beneficial  service  has  been  actually  performed ;  for  we  have  abundant 
reason  to  believe,  that  the  general  understanding  of  the  community 
is  that  the  hired  laborer  shall  be  entitled  to  compensation  for  the 
service  actually  performed,  though  he  do  not  continue  the  entire 
term  contracted  for,  and  such  contracts  must  be  presumed  to  be  made 
with  reference  to  that  understanding,  unless  an  express  stipulation 
shows  the  contrary. 

Where  a  beneficial  service  has  been  performed  and  received,  there- 
fore, under  contracts  of  this  kind,  the  mutual  agreements  cannot  be 
considered  as  going  to  the  whole  of  the  consideration,  so  as  to  make 
them  mutual  conditions,  the  one  precedent  to  the  other,  without  a 
specific  proviso  to  that  effect.  Boone  v.  Eyre,  1  H.  Bl.  273,  n. ; 
Campbell  v.  Jones,  6  D.  &  E.  570;  Ritchie  v.  Atkinson,  10  East,  295; 
Burn  V.  Miller,"  4  Taunt.  745. 

It  is  easy,  if  parties  so  choose,  to  provide  by  an  express  agreement 
that  nothing  shall  l)e  earned,  if  the  laborer  leaves  his  employer  without 
having  performed  the  whole  service  contemplated,  and  then  there  can 
be  no  pretence  for  a  recovery  if  he  voluntarily  deserts  the  service 
before  the  expiration  of  the  time. 

The  amount,  however,  for  which  the  employer  ought  to  be  charged, 
where  the  laborer  abandons  his  contract,  is  only  the  reasonable  worth. 


760  BRITTON    V.    TURNER.  [BOOK   II. 

or  the  amount  of  advantage  he  receives  upon  the  whole  transaction. 
Wadleigh  v.  Sutton,  6  IST.  H.  15.  And,  in  estimating  the  value  of  the 
labor,  the  contract  price  for  the  service  cannot  be  exceeded.  7  Green. 
78;  Dubois  v.  Delaware  &  Hudson  Canal  Company,  4  Wend.  285; 
Koon  V.  Greenman,  7  Wend.  131. 

If  a  person  makes  a  contract  fairly  he  is  entitled  to  have  it  fully 
performed,  and  if  this  is  not  done  he  is  entitled  to  damages.  He  may 
maintain  a  suit  to  recover  the  amount  of  damages  sustained  by  the 
non-performance. 

The  benefit  and  advantage  which  the  party  takes  by  the  labor^ 
therefore,  is  the  amount  of  value  which  he  receives,  if  any,  after 
deducting  the  amount  of  damage;  and  if  he  elects  to  put  this  in 
defence  he  is  entitled  so  to  do,  and  the  implied  promise  which  the 
law  will  raise  in  such  case,  is  to  pay  such  amount  of  the  stipulated 
price  for  the  whole  labor  as  remains,  after  deducting  what  it  would 
cost  to  procure  a  completion  of  the  residue  of  the  service,  and  also 
any  damage  which  has  been  sustained  by  reason  of  the  non-fulfilment 
of  the  contract. 

If  in  such  case  it  be  found  that  the  damages  are  equal  to,  or  greater 
than  the  amount  of  the  labor  performed,  so  that  the  employer,  having 
a  right  to  the  full  performance  of  the  contract,  has  not  upon  the 
whole  case  received  a  beneficial  service,  the  plaintiff  cannot  recover. 

Tliis  rule,  by  binding  the  employer  to  pay  the  value  of  the  service 
he  actually  receives,  and  the  laborer  to  answer  in  damages  where  he 
does  not  complete  the  entire  contract,  will  leave  no  temptation  to  the 
former  to  drive  the  laborer  from  his  service,  near  the  close  of  his 
term,  by  ill  treatment,  in  order  to  escape  from  payment;  nor  to  the 
latter  to  desert  his  service  before  the  stipulated  time,  without  a 
sufficient  reason ;  and  it  will  in  most  instances  settle  the  whole  contro- 
versy in  one  action,  and  prevent  a  multiplicity  of  suits  and  cross 
actions. 

There  may  be  instances,  however,  where  the  damage  occasioned  is 
much  greater  than  the  value  of  the  labor  performed,  and  if  the  party 
elects  to  permit  himself  to  be  charged  for  the  value  of  the  labor, 
without  interposing  the  damages  in  defence,  he  is  entitled  to  do  so, 
and  may  have  an  action  to  recover  his  damages  for  the  non-perform- 
ance, whatever  they  may  be.     Crowninshield  v.  Robinson,  1  Mason. 

And  he  may  commence  such  action  at  any  time  after  the  contract 
is  broken,  notwithstanding  no  suit  has  been  instituted  against  him; 
but  if  he  elects  to  have  the  damages  considered  in  the  action  against 
him,  he  must  be  understood  as  conceding  that  they  are  not  to  be 
extended  beyond  the  amount  of  what  he  has  received,  and  he  cannot 
afterwards  sustain  an  action  for  farther  damages. 

Applying  the  principles  thus  laid  down  to  this  case,  the  plaintiff 
is  entitled  to  judgment  on  the  verdict. 

The  defendant  sets  up  a  mere  breach  of  the  contract  in  defence 


CHAP.    II.]  BRITTON   V.   TURNER. 


761 


of  the  action,  but  this  cannot  avail  him.  He  does  not  appear  to  have 
offered  evidence  to  show  that  he  was  damnified  by  such  breach,  or 
to  have  asked  that  a  deduction  should  be  made  upon  that  account 
The  direction  to  the  jury  was  therefore  correct,  that  the  plamtitt 
was  entitled  to  recover  as  much  as  the  labor  performed  was  reason- 
ably worth,  and  the  jury  appear  to  have  allowed  a  pro  rate  com- 
pensation, for  the  time  which  the  plaintiff  labored  in  the  defendant  s 

service 

As  the  defendant  has  not  claimed  or  had  any  adjustment  of  dam- 
ao-es  for  the  breach  of  the  contract,  in  this  action,  if  he  has  actually 
sustained  damage  he  is  still  entitled  to  a  suit  to  recover  the  amount. 

Whether  it  is  not  necessary,  in  cases  of  this  kind,  that  notice  should 
be  given  to  the  employer  that  the  contract  is  abandoned,  with  an  offer 
of  adjustment  and  demand  of  payment;  and  whether  the  laborer  must 
not  wait  until  the  time  when  the  money  would  have  been  due  accord- 
ing to  the  contract,  before  commencing  an  action  (5  B._  &  ^j  f^^ 
questions  not  necessary  to  be  settled  in  this  case,  no  objections  ot  that 

nature  having  been  taken  here. 

Judgment  on  the  verdicts 

^"Whatever  might  be  the  views  of  the  court  as  at  present  organized,  in  a 
case  like  that  of  Britten  v.  Turner,  and  however  much,  even,  some  may  think 
it  is  to  be  regretted  that  the  rule  of  law  there  laid  down  was  allowed  to  obtain, 
still,  considering  that  it  has  remained  as  the  law  of  the  State  for  nearly  twenty 
years,  and  has  never  been  overruled,  and  that  while  it  has  the  strong  feature 
of  its  direct  tendency  to  the  wilful  and  careless  violation  of  express  contracts 
fairly  entered  into,  to  lead  to  its  condemnation  and  disapproval,  it  has  also 
some  features  of  advantage  and  strong  justice  to  recommend  it  \\e  on  the 
whole,  are  not  inclined  to  disturb  the  doctrines  of  that  case,  but  to  adopt  and 
apply  them."    Woods,  C.  J.,  in  Davis  v.  Barrington,  30  N.  H.  517,  529. 

And  spe  the  valuable  note  on  the  doctrine  of  the  principal  case  as  a  note 
to  Hay^vard  v.  Leonard   (1828)   7  Pick.  181,  as  reported  in  19  Am.  Dec.  268, 

"^  "xhe"  following  jurisdictions  seem  to  have  adopted  the  doctrine  of  the 
principal  case:  Pixler  ..  Nichols  (1859)  8  la.  106;  Wheat  ley  ..  fiscal  1854) 
5  Ind.  142  (infant's  services)  ;  Duncan  ..  Baker  (1878)  21  Kas.  991 ;  Sheldon 
V.  Leahy  (1896)  111  Mich.  29;  Parcell  v.  McComber  (1886)  95  N.  0.  98; 
Carroll  v.  Welch   (1861)   26  Tex.  147. 

The  weight  of  authoritv  is  clearly  against  Britton  v.  Turner,  sup,a,  but  the 
reason  of  the  thing  and  the  trend  of  legal  development  are  clearly  in  favor  of  it 

In  Gorman  v.  Bellamy  (1880)  82  N.  C.  496,  500,  the  court  said:  The 
inclination  of  the  courts  is  to  relax  the  stringent  rules  of  ^^e  common  law 
which  allows  no  recovery  upon  a  special  unperformed  contract  itself,  nor  for 
the  value  of  the  work  done  because  the  special  excludes  an  ^^JP^f^""^^^;;^ 
to  pay.  In  such  case  if  the  party  has  derived  any  benefit  from  the  labor  done 
it  would  be  unjust  to  allow  him  to  retain  that  without  paying  anything^  The 
law,  therefore,  implies  a  promise,'  say  the  court,  'to  pay  such  remuneration  as 
the  henerfit  conferred  is  really  worth.' "  ^  ^  a  fv,.  fniinw 

And  in  McClay  v.  Hedges  (1864)  18  la.  66,  68,  Dillon,  J.,  used  the  follow- 


762  BRITTOX   V.    TURNER.  [BOOK   II. 

ing  just  and  weighty  language:  "This  question  was  settled  in  this  State  by 
the  case  of  Pixler  v.  Nichols,  8  la.  106,  which  distinctly  recognized  and  ex- 
pressly followed  the  case  of  Britton  v.  Turner,  6  N.  H.  481.  That  celebrated 
case  has  been  criticised,  doubted  and  denied' to  be  law.  It  is  frequently  said  to 
be  good  equity,  but  bad  law.  Yet  its  principles  have  been  gradually  winning 
their  way  into  professional  and  judicial  favor.  It  is  bottomed  on  justice,  and 
is  right  upon  principle,  however  it  may  be  upon  the  technical  and  more 
illiberal  rules  of  the  common  law,  as  found  in  the  old  cases." — Ed. 


SYLLABUS    INDEX 


Acceptor  or  drawee  is  bound  to  know  signature  of  the  maker  and  money  paid 
under  mistake  as  to  it,  cannot  be  recovered,  Price  v.  Neal,  483-487,  and 
note,  486-487. 

Actio  personalis  cum  persona  moritur,  85-106. 

Action  does,  however,  survive  if  estate  of  deceased  has  received  a  posi- 
tive benefit  as  distinguished  from  a  mere  saving,  85-106.  The  action 
should  survive  in  this  latter  class  of  cases,  but  authority  is  opposed  to 
reason  in  this  instance,  but  see  104-106.  In  cases  of  fiduciary  nature  no 
enrichment  seems  necessary,  and  the  action  survives,  note,  92-93. 

Action  of  account  has  given  way  to  debt,  and  both  have  been  largely  super- 
seded by  iudebitatus  assmnpsit.  For  nature  of  account,  see  notes  to 
Asher  v.  Wallis,  131-132;  108,  note,  for  reference  to  history  of  action. 

of  ease  as  concurrent  with  the  indehitatus  count,  in  actions  concerning 

innkeepers  and  common  carriers,  26,  and  notes,  28-29.  For  the  action  in 
general,   541. 

of  debt  in  quasi-contract  is  concurrent  with  indehitatus,  108;  but  in  case 

of  domestic  or  State  judgments  debt  is  still  the  appropriate  action  because 
based  upon  the  record,  20,  note ;  in  case  of  foreign  judgment,  either  debt 
or  assumpsit  lies  in  England  and  United  States ;  in  Canada  only  assump- 
sit, 22,  note.     But  see  Richards  v.  Bickley,  51-56. 

for   money  had   and    received,    only   lies   when   defendant   has    received 

money  or  its  equivalent,  107,  111,  114;  is  equitable  in  its  nature,  4,  34, 
note,  37,  546 ;  is  really  a  bill  in  equity  in  common  law  court,  546. 

for   goods    sold   and   delivered   requires   goods   to   have   been   sold    and 

converted  into  money  by  strict  rules  of  pleading.  112;  the  better,  and  it  is 
believed,  the  more  general  rule  to-day  is  satisfied  by  the  receipt  of  any 
object  of  value,  111-114;  nor  is  it  necessary,  to  sustain  the  counts  in 
modern  law,  to  prove  a  sale;  the  goods  may  remain  unsold  or  unused, 
that  is,  uneonsumed  in  the  tort-feasor's  possession,   114-121. 

for  money  paid  by  the  plaintiff  to  defendant's  use,  as  in  case  of  indemnity 

of  surety,  251,  et  scq.;  in  case  of  salvage,  239,  et  seq. 

for  money  received  by  defendant  to  plaintiff's  use,  417. 

survival  of.  in  cases  of  tort,  is  conditioned  upon  the  fact  that  defendant's 

estate  has  received  a  positive  benefit,  not  a  mere  saving,  at  the  plaintiff's 
expense,  85-107;  although  in  equity,  fiduciary  relation,  without  any  benefit 
is  sufficient,  note  to  Hambly  r.  Trott,  92-93. 

Admiralty — duty  to  contribute  in  general  average  is  quasi-contractual,  238-250  ;. 
the  obligation  to  pay  salvage  is  quasi-contractual  and  is  one  of  the  few 
instances  of  negotiorum  gestio  (unauthorized  agency)  in  our  law,  41,  note. 


764  SYLLABUS   INDEX 

Agency — plaintiff  may  waive  tort  thereby  ratifying  the  transaction  and 
recover  in  quasi-contract  on  principle  of  agency,  107,  131  and  note,  131- 
133,  570.  If  agent  has  paid  over  the  proceeds  to  his  principal,  then  action 
lies  against  principal,  not  agent,  570,  unless  the  agent  knew  the  circum- 
stances at  or  before  paying,  570;  agents  acting  as  principals  but  in  reality 
for  undisclosed  principals,  are  responsible  as  principals,  not  agents,  and 
cannot  invoke  the  law  of  agency  to  shield  them  against  recovery,  575, 

(unauthorized)   1-4-18,  37-41  and  note,  40-41.     See  negotiorum  gestio  and 

salvage. 

Agent — If  agent  would  be  prejudiced  in  his  legal  rights,  by  recovery  against 
him,  then  recovery  should  be  limited  to  principal,  unless  agent  paid  with 
knowledge,  570;  otherwise  in  case  of  agent  acting  for  an  undisclosed. 
principal,  575. 

Ames,  James  Barr,  nature,  extent  and  classification  of  quasi-contracts,  18. 

Amount — ^Mistake  as  to  existence  of  a  debt  permits  recovery  when  no  amount 
is  due,  515;  or  if  greater  amount  has  been  paid  through  mistake,  not  as 
compromise,  the  excess  so  paid  is  recoverable,  515,  518. 

Apprenticeship — If  contract  has  not  been  begun,  then  the  whole  amount 
paid  for  contract  may  be  recovered.  If  contract  has  been  partly  per- 
formed and  is  inseparable,  recovery  is  not  permitted  of  any  of  the  sums 
paid,  Gll-61.3,  and  note. 

waiver  of  tort  and  value  of  services  of  apprentice  recovered  from  tort- 
feasor or  his  estate,  134-137.     See  MS,  note. 

Arrest  of  person  in  quasi-contract,  68-75. 

Assumpsit,  concurrent  with  account,  case  and  debt  28,  note;  108,  note;  the 
favorite  action  in  quasi-contract,  4,  34,  274-275. 

does  -not   lie   for   tortious,   and   adverse  use   and   occupation   of   realty, 

98  and  note,  98-99. 

Attachment  of  goods  in  quasi-contract  is  favored,  although  theoretically  it 
should  not  be,  04-68. 

of  person  in  quasi-contract  is  not  favored  as  in  derogation  of  personal 

liberty;  if  permitted  by  statute,  is  construed  strictly,  68-75. 

Austin,  John,  nature  of  quasi-contract,  16. 

Average  (general)  in  quasi-contract,  238-250. 

Bankers — held  to  knowledge  of  signatures  of  their  customers,  505, 

Bankruptcy  discharge  obtained  by  duress,  159-16G. 

Benefit — conferred  at  reqiiest  and  not  gratuitously,  gives  rise  to  action  for 
reasonable  value  of  benefit  where  there  has  been  mistake  as  to  amount 
of  compensation,  348-351. 

conferred    in    expectation    of    legacy    is    recoverable    if    plaintiff   really 

intended    to    charge    for    the    same    and    not    to    perform    the    services 
^'ratnitoiisly,  336  and  note,  337. 

confencd  by  members  of  one  or  same  family  closely  watched,  but  allowed 

for  on  fiunntum  nicruit,  if  there  seems  to  be  intent,  express  or  implied,  at 
time  of  rendering  services  to  charge  for  same,  339,  343  and  note. 

conferred  by  plaintiff  upon   defendant  who   fraudulently  accepted  the 

services   which    plaintiff  believed   himself  or  herself  bound   to   perform, 
should     be     recoverable     on     a     quantum     meruit,     336-348,     and    note 


SYLLABUS    IXDEX  765 

although  the  contrary  view  prevails  quite  generally,  337,  339,  340-341  and 
note,  341. 

conferred    by    mistake    upon    personal    property    of    another,    held    not 

recoverable,   333-336. 

conferred    upon    another's    property   but    really    in    the    interest    of    the 

plaintiff,  not  recoverable,  303-306. 

conferred    without    request,    wrongly    held    not    recoverable    in    Boston 

Ice  Co.  V.  Potter,  300-302.     This  may  be  good  law,  but  bad  quasi-contract. 

conferred  by  plaintiff  in  saving  defendant's  property  from  destruc- 
tion from  fire,  not  recoverable,  295. 

■  conferred  by  performance  of  obligation  for  which  defendant   is   legally 

or  morally  liable  by  ties  of  natural  justice,  should  give  plaintiff  action 
for  recovery  of  value  of  such  performance,  290-204,  291,  note. 

conferred  at  request  but  not  in  creation  or  performance  of  a  contract, 

336-351. 

intentionally  conferred  upon  defendant,  280-3Uo. 

received  by  defendant,  280-351. 

unintentionally  conferred  upon  defendant,  that  is  plaintiff  really  meant  to 

benefit  himself,  not  defendant,  307-330. 

Betterment  acts  permit  recovery  for  improvements  placed  upon  property  of 
defendant  in  reasonable  belief  that  the  property  really  belongs  to  the 
plaintiff",  323-328. 

Bills  and  notes — in  as  far  as  the  law  of  quasi-contract  is  involved — will  be 
found  principally  in  the  section  beginning  with  Price  v.  Xeal,  483-515, 
522-529  and  the  various  footnotes  to  the  pages  here  indicate. 

Bracton  on  quasi-contract,  4. 

Business — money  extorted  to  protect — may  be  recovered,  182-184  and  note. 

Carrier  delivering  goods  to  wrong  party  may,  on  payment  to  party  entitled, 
recover  such  payment  to  party  wrongfully  or  mistakenly  receiving  and 
retaining  the  goods  in  question,  227. 

liable   for  money  extorted  to   procure  delivery  of  goods,   177-182   and 

note. 

liability  of — in  quasi-contract,   28   and   note. 

may  recover,  keep  of  horse  which  owner  refuses  to  receive,   233,  but 

see  note  237-238. 

Change  of  position  as  a  bar  to  I'ccovery  in  Continental  law,  notes,  581,  582. 

of  position  no  bar  to  recovery  in  English  law,  575-581. 

of  position  due  to  laches  held  to  bar  recovery,  572. 

of  position  by  either  party  as  affecting  recovery,  568-581. 

Civil  law,  that  is  Roman  law,  as  a  source  of  English  law  of  quasi-contract, 
1,  4,  9,  12,  13,  10,  17,  18.     Bright  v.  Boyd,  314-320,  321,  note. 

Collateral  fact — mistake  as  to — is  immaterial,  and  therefore  neither  bars  nor 
permits  recovery,   524-541. 

Common  carriers'  liability  is  quasi-contractual,  28  and  note. 

Compounding  a  felony  prevents  recovery  of  money  paid  therefor,  106-169  and 
note. 

Compromise — is  favored  in  law  and  will  bar  recovery  for  mistake  unless  mis- 
take is  one  of  material  and  basic  fact,  or  if  produced  by  fraud  or  unfair 
dealing,  399,  note,  304-405;  515,  518. 


766  SYLLABUS    INDEX 

of  a  doubtful  point  of  law  unless  tainted  with  a  fraud  or  unfair  dealing, 

not  subject  to  recovery,  399-404. 
Compulsion  of  legal  process,  189-227. 
permits  recovery  of  money  paid  thereunder,  154-227. 

Condictio  indebiti — the  action  for  money  had  and  received  in  Roman  law — 
2,  4-16  passim,  159,  365-366,  notes;  568-569;  591. 

Continental  and  Spanish- American  law  principally  referred  to,  18,  note;  39-40, 
notes;  Bright  v.  Boyd,  314-321,  note;  365-366,  notes;  581-582,  notes; 
718,  note. 

Contract — avoided  permits  suit  in  quasi-contract  without  performing  terms 
of  contract  broken,  122-125;  contra,  121-122.  And  see  under  heading 
Reeission  and  repudiation  of  contract. 

versus  quasi-contract,  1,  13,  16,  17,  18,  42-84. 

Contribution  in  average  is  quasi-contractual,  238-250. 

in  suretyship  is  equitable  and  therefore  quasi-contractual  in  its  nature, 

254-267. 

in  tort  and  between  joint  tort-feasors,  268-279. 

Counterclaim  in  quasi-contract,  62-64,  118. 

Death    excuses    performance   as    well    as    damages    for   non-performance,    and 

recovery  may  be  had  for  reasonable  value  of  services  already  performed, 

636-640  and  note,  640.     But  contra  632-636. 

Default  due  to  impossibility  of  performance,  603-659. 

is  wilful  and  inexcusable,  713-762. 

of  defendant  is  wilful  and  inexcusable,  713-735. 

of  plaintiff  is  wilful  and  inexcusable,  735-762. 

Demand  unnecessary  before  suit  if  defendant  knew  of  mistake  at  time  of  pay- 
ment or  before  suit  brought,  565-566. 

before  suit  held  necessary  if  payment   is   innocently  made,   innocently 

accepted  and  innocently  retained,  564. 

as  a  prerequisite  to  bringing  suit  is  held  by  Supreme  Court  of  U.  S. 

not  to  be  necessary,  and  statute  of  limitations  runs  from  moment  of  pay- 
ment, not  from  demand  made,  and  interest  runs  from  same  time,  Leather 
Manufacturers'  Bank  r.  Merchants'  Bank,  560-564. 

various  and  varying  views  as  to  necessity  thereof,  560-568. 

Discharge  in  bankruptcy  obtained  by  duress  may  be  set  aside  and  money 
extorted  therefor  recovered,   159-166. 

Drawee  is  bound  to  know  signature  of  the  drawer,  and  a  fortiori,  the  maker 
is  bound  to  know  his  own  signature,  506-515. 

is  not  bound  to  know  the  signature  of  payee,  486,  note. 

Duress,  legal  or  equitable,  permits  recovery,  154-189. 

exercised  in  obtaining  discharge  in  bankruptcy  vitiates  the  transac- 
tion and  permits  recovery  of  money  paid  to  obtain  discharge,  159-166. 

Duty  as  a  source  of  quasi-contract,  20-33. 

Election  of  remedies,  137-153,  especially  notes,  148-151,  153-155. 

Enrichment  at  plaintiff's  expense,  as  source  of  quasi-contract,  18,  33-37,  280- 
351. 


SYLLABUS    IXDEX  767 

Evans  (Sir  William  D.),  Essay  on  action  for  money  had  and  received,  13. 

(Sir  William  D.)  on  source  of  Lord  Mansfield's  law,  9. 

Foreign  law,  mistake  of,  is  mistake  of  fact,  384-393  and  391,  note. 

as  distinguished  from  the  common  law  of  England  and  United  States, 

see  heading:     Continental  and  Spanish- American  law. 

Forgery — circumstances  under  which  recovery  allowed,  488-505. 

Frauds,  statute  of,  and  its  effect  upon  enforceability  of  contracts,  686-713. 

Freight — cannot  be  recovered  if  goods  are  not  landed  at  point  of  destination 
unless  defendant  consents  to  receive  the  goods  at  intermediate  point.  In 
such  a  case,  freight  pro  rata  is  recoverable,  621-626.  Lord  Mansfield  held 
freight  to  be  recoverable  on  capture  pro  rata  itineris,  Luke  v.  Lyde,  616- 
620. 

paid   in  advance  may  be  recovered  if  performance  becomes   impossible, 

603-609.     The  English  law  is,  however,  contra,  609-610,  note. 

Funeral  expenses  are  recoverable  where  not  paid  officiously  and  in  a  meddling 
way,  292,  note,  294-295. 

General  average  in  quasi-contract,  238-250. 

Goods  sold  and  delivered,  see  Action. 

Illegality  of  contract  accompanied  by  fraud  and  duress,  667. 

of  contract  as  affected  by  statutory  prohibition,  669-681. 

of  contract  does  not  prevent  recovery  by  innocent  party  to  whom  the 

illegality  was  unknown,  or  for  whose  benefit  tne  illegality  was  created, 
156,   660,   669. 

of  contract,  where  facts  are  known  to  both  parties,  who  thus  stand 

in  pari  delicto,  ordinarily  prevents  recovery  by  either,  663  et  seq. 

of  contract  in  the  law  of  agency,  681-685. 

of  contract  in  partnership  transactions.  Highwayman's  case,  666. 

Impossibility  of  performance  by  act  of  law  excuses  performance  and  damages 
for  breach,  and  permits  recovery  on  quantum  meruit,  641-643  and  note. 

of  performance  is  a  good  defence  to  an  action  for  recovery  of  money, 

if  the  contract  is  Inseparable  and  partly  performed,  611-613;  if,  how- 
ever, the  contract  is  wholly  unperformed,  so  that  failure  of  consideration 
is  total,  recovery  is  permitted  even  in  English  law,  615. 

of   performance    excuses    plaintiff   and    he   may   recover   the   reasonable 

value  of  his  services  on  a  qnantum  meruit,  621,  627;  but  if  complete  per- 
formance be  a  condition  precedent  to  any  payment,  recovery  is  refused  in 
England,  Cutter  v.  Powell,  632.  Recovery  should,  however,  be  permitted 
in  such  cases  according  to  the  value  of  the  services  actually  performed 
and  received  by  defendant  as  in  Parker  v.  Macomber,  636-640  and  note. 

-  of  performance  produced  by  destruction  of  the  subject  matter  ex- 
cuses plaintiff's  performance  and  permits  recovery  on  a  quantum  m.eruit, 
643,  646,  652-654.  If  complete  performance  be  a  condition  precedent  to 
payment,  the  English  law  refuses  recovery,  646,  note. 

Improvements  placed  upon  defendant's  property  in  the  reasonable  belief  that 
the  property  belonged  in  law  to  the  plaintiff,  not  recoverable  at  law  in 
the  absence  of  statute  (termed  Betterment  Acts,  which  see),  307-312,  321- 
322 ;  but  recovery  of  value  of  such  improvements  was  always  allowed  on 
a  bill  in  equity  in  which  the  maker  of  the  improvements  in  question  was 


768  SYLLABUS    INDEX 

defendant,  note  312.  In  some  jurisdictions  the  plaintiff  is  allowed  affirma- 
tive relief  as  plaintiff  in  equity,  313-322.  By  so-called  "Betterment  Acts," 
recovery  is  now  usually  allowed  at  law,  323-328. 

Indemnity  in  suretyship  is  quasi-contractual  in  its  origin  and  nature,  250 
et  seq. 

Infant's  liability  for  necessaries  is  quasi-contractual,  not  contractual,  438, 
note,  and  infant  retaining  benefit  should  be  liable  therefor  like  any 
adult,  sane  or  insane,  as  quasi-contract  rests  upon  duty  of  restitution 
not  upon  agreement  of  parties,  437. 

Innkeeper's  liability  is  quasi-contractual,  26,  note  26-27. 

Insane  person's  liability  is  quasi-contractual  not  contractual  as  all  elements 
essential  to  formation  of  a  contract  are  absent.  Sceva  v.  True,  75-80. 
The  same  is  true  in  a  lesser  degree  of  the  liability  of  infants  and  married 
women  unless  modified  by  statute. 

Institutes  of  Justinian,  1. 

Insurance  of  goods   not  on  board  or  where   risk  has  not  attached  may  be 

recovered,  407-412  and  note. 
of  life  of  person,  where  default  is  made  in  payment  of  premises,  627-631. 

Interest  paid  by  mistake  cannot  be  recovered  with  the  intention  of  the 
parties  was  to  pay  interest;  but  the  instrument  failed  to  provide  for  its 
payment,  as  it  is  not  dishonest  or  unconscientious  for  the  defendant  to 
retain  the  money  so  paid,  551. 

upon  a  judgment  is  quasi-contractual,  33,  note. 

Involuntary  payments,  the  result  of  duress  may  be  recoverd  with  or  without 
protest,  170-189,  217,  note. 

Judgment  in  the  civil  law,  26,  note. 

is  a  quasi-contract,  not  a  contract  in  the  strict  sense  of  the  term,  19-25, 

49-56,  64-68;  if  judgment  arises  upon  a  tort,  then  it  is  clearly  not  a 
contract,  22-25;  if  upon  a  contract,  then  judgment  partakes  so  far  of  the 
nature  of  a  contract  as  to  fall  within  the  Federal  protection  of  contracts 
against  State  impairment    (Constn.  U.  S.  Art.   1.  sec.   10)    notes,  25-26. 

subsequently  reversed  gives  right  of  action  for  money  paid  thereunder, 

206,  note. 

Justinian — Institutes  of,  1. 

Laches  held  a  bar  to  recovery  on  change  of  position,  572. 

Legal  process,  compulsion  of,  189-227. 

Limitations  (statute  of)  in  quasi-contract,  42-5G;  in  cases  of  demand.  560-564. 

Locus  poenitentiae  in  illegal  contracts,  Tappenden  v.  Randall,  6(53,  note,  665- 
666. 

Maine,  Sir  Henry  Sumner,  quasi-contiiut  in  Roman  and  common  law,  17. 

Mansfield,  Lord,  as  creator  of  English  law  of  quasi-contract,  4-12,  note,  13. 

Measure  of  recovery  in  cases  of  wilful  default  of  defendant  is  in  some  juris- 
dictions the  contract  price;  or  a  sum  not  exceeding  the  contract  price; 
in  others,  the  real  value  of  the  services,  726-735  and  notes. 

of  recovery  in  quasi-contract,  127-130. 


SYLLABUS    INDEX  769 

Mistake — as  to  law  or  fact,  352-406. 

as  to  creation  of  a  contract,  407-438. 

of  law  ordinarily  is  not  relieved  against  in  courts  of  law  or  equity,  since 

the  decision  in  Bilbie  v.  Lumley,  1802,  352-406. 

by  officers   of  court   are  relieved   against   on   the  two-fold   ground   that 

courts  should  show  good  example  and  should  correct  their  own  mistakes 
as  well  as  mistakes  of  their  officers,  396-399  and  note. 

and  the  relief  granted  therefor  in  courts  of  equity,  notes  406-409. 

of  foreign  law  considered  a  mistake  of  fact  and  therefore  relievable  in 

appropriate  cases,  384-393. 

of  law,  not  relieved  against  in  Georgia  and  S.  Carolina,  but  ignorance 

of  law  affords  ground  for  relief,  368-376,  note,  376. 

of  law  as  well  as  fact  relieved  against  in  Connecticut,  376-382,  and  Ken- 
tucky, 382,  note. 

of  law  in  a  doubtful  point  in  a  compromise  will  not,  in  absence  of  fraud, 

vitiate  the  compromise,  399-404. 

of  a  government  official,  393-395  and  note  395-396. 

as  to  existence  of  debt  permits  recovery,  515;  or  if  greater  amount  has 

been  paid  through  mistake,  excess  is  recoverable,  518,  522. 

— —  of  fact,  considerations  affecting  a  recovery  therefor,  541-591. 

■  as   to  a  collateral   fact   is   immaterial,   and  therfore  affords  no  ground 

for  recovery,  524-541. 
as  to  the  subject  matter  of  a  contract,  439-541. 

as  to  existence  or  identity  of  contract,  439-460.     If  not  existent,  and  the 

object  is  bought  as  existent,  the  money  so  paid  is  recoverable,  450-452.  If 
real  estate  with  house  thereon  is  purchased  and  house  is  destroyed  with- 
out fault  of  either  party,  law  places  loss  on  vendor,  while  equity  places  the 
loss  on  the  purchaser,  453-457,  and  note  457-458. 

as  to  validity,  amount  of  claim,  or  as  to  collateral  fact,  483-541. 

niay  be  as  to  title  of  vendor,  460-482. 

Money  extorted  to  protect  business  may  be  recovered,  182-184. 

had  and  received  only  lies  where  defendant  has  received  money  or  its 

equivalent,  107,  111,  114;  is  equitable  in  its  nature,  4,  34,  note,  37,  546;  is 
really  a  bill  in  equity  in  a  common  law  court,  546. 

paid  as  a  premium  when  no  goods  are  on  board  may  be  recovered,  407 ; 

so  where  goods  are  on  board,  but  risk  failed  to  attach,  410-412,  note. 

received  by  unauthorized  agent  is  recoverable  from  the  principal  provided 

such  principal  has  had  benefit  thereof,  415-422,  425-427;  contra,  413,  423. 

Mortgage  of  future  acquired  property,  while  invalid  at  law,  is  valid  in  equity, 
so  that  future  acquired  property  passing  on  foreclosure  to  the  mortgagee 
may  not  be  recovered  in  quasi-contract,  549  and  note  550-551. 

Moses  V.  Macferlan  as  source  of  quasi-contract,  4. 

V.  Macferlan  and  its  relation  to  Roman  law,  9. 

Negative  enrichment — that  is  a  mere  saving  does  not  support  a  recovery 
against  estate  of  deceased  tort-feasor,  note,  99   (last  paragraph). 

Negligence  no  bar  to  recovery,  582-591. 

Negotiorum  gestio,  as  source  of  quasi-contract  in  Roman  and  common  law, 
1-4,  16,  18,  37-41  and  note,  40-41.     In  admiralty  law,  41,  note. 

Official  duty  as  a  source  of  quasi-contract,  18,  29-31. 


T70  SYLLABUS    IXDEX 

Partnership  money  received  on  specialty  of  one  partner,  who  was  neither 
authorized  nor  ratified  to  bind  firm  l)y  instrument  under  seal,  should 
be  recovered  if  partnership  actually  received  and  retained  benefit  of  the 
transaction,  414.  RecoveA'  would  seem  to  be  wrongly  and  inequitably  to 
be  denied  in  such  cases,  413. 

Patent  right  is  taken  at  risk  of-  the  purchaser,  and  failure  of  patent  is,  in 
absence  of  fraud  or  other  evidence  of  fair  dealint;,  no  pound  for  recovery 
at  law.     In  quasi-contract  recovery  might  well  be  permitted,  428-432. 

Payment  under  protest.  217,  note. 

in  discharge  of  an  obligation,  227-279. 

made  by  stranger,  without  antecedent  request  or  subsequent  ratification 

by  del)tor,  should  nevertheless  render  debtor  liable  for  the  hcnolit  actually 
accruing  to  liim  by  .•^uch  payment,  280. 

of  an  obligation  of  third  pariy  gives  right  of  recovery,  228. 

Position — change  of  by  eitlier  party  as  affecting  recovery,  5G8-581. 

Positive  enrichment  is  required  in  order  to  ta.\  estate  of  deceased,  85-100;  a 
negative  eniichment,  that  is,  a  mere  saving,  does  not  suffice  according  to 
weight  of  authority,  99,  note;  but  reason  is  clearly  in  its  favor,  and 
authority  is  not  lacking  for  its  support,  104;106. 

Present  in  contemplation  of  marriage,  held  recoverable,  283. 

as  such  is  mere  gift  and  not  recoverable,  283. 

Process — compulsion  of,  189-227. 

Property — money  extorted  for  protection  to,  or  for  possession  thereof,  may  be 
recovered,  170-189. 

Protest  its  importance  or  necessity,  217,  note. 

Purchase  for  value  is  a  good  defence  to  an  action  for  recovery  of  money,  591- 
002. 

Purchaser  for  value — defence  of,  591-G02. 

Quasi-C'ontract — its  origin  and  history,  1-18;  its  sources  in  English  law,  18; 
its  extent  and  nature,  Chap.  III.,  9-41 ;  as  all'ected  by  Statute  of  Limita- 
tions, 42-50;  as  afTected  by  set-ofT  and  counterclaim,  attachment  and 
arrest,  50-75;  wherein  it  differs  from  pure  contract,  75-84;  wlierein  it 
differs  from  a  tort,  85-lOG. 

Recission  and  repudiation  of  contract.  717-71!».  notes;  725-727.  notes;  729-732 
and  notes,  732-734.  In  these  references  tlie  necessary  elements  and  the 
measure  of  damages  are  considered. 

Recognizance  as  source  of  (|uasi-(ontraet,  20.  note. 

Record  as  a  sourer'  af  f|ua--i-coiilrii(l,  IS.  i;>-25. 

Recovery  for  mistake  of  fact,  considerations  afVecting,  541-591. 

lies  for  mislake  of  fact  only  when  defendant  has  received  money  or  its 

equivali'iit  whidi  rx  frf/iin  rt  houo,  he  may  not  retain,  541-500. 

Remedies  election  of,  137-153,  especially  notes   14S-151  ;    153-155. 
Repudiation  of  conlracl,  see  heading:     Recission  and  repudiation  of  eontrnet. 

Roman  Law  as  soiirre  of  English  law  of  quasi-contract,  1,   1,  9,  12,  13,   10,  17, 

187.     Hright  r.  lioyd,  313. 
Salvage  is  quasi-contractual,  10,  41,  note. 


SYLLABUS   INDEX  771 

Scotch  law  will  be  found  referred  to  under  headings:  Condictio  indebiti  and 
continental  law. 

Sealed  instruments  and  measure  of  recovery  for  breach  thereof,  718-719,  note; 
Wellston  Coal  Co.  v.  Franklin  Paper  Co.,  729-732,  and  note  to  the  case. 

Services  performed  without  request  should,  if  beneficial,  be  paid  for,  286-290. 

performed  against  request  do  not  give  rise  to  cause  of  action,  285. 

Set-off'  in  quasi-contract,  56-62. 

Sickness  of  plaintiff,  or  presence  of  epidemic  or  contagious  disease,  excuses" 
performance,  and  recovery  may  be'  had  for  the  reasonable  value  of  the 
services  already  performed,  636-640  and  note. 

Smith,  Adam,  nature  of  quasi-contract,  12. 

Statute  as  source  of  quasi-contract,  18,  32-33,  56-62. 

of  Limitations  in  quasi-contract,  42-56;  560-568. 

of  Limitations  begins  to  run  from  time  of  payment,  not  from  demand,  560- 

564;  but  this  is  questioned  and  limited  to  cases  in  which  defendant  acted 
tortiously  or  dishonestly,  564-568. 

Statute  of  Frauds  and  the  three  theories  concerning  recovery  or  non-recovery, 
687,  note. 

■ of  Frauds  where  defendant  is  in  default,  080-706. 

of  Frauds — where  plaintiff'  is  in  default,  706-713. 

Statutory  duty  as  source  of  quasi-contract,  18,32-33,  56-62. 

Suretyship — right  of  contribution  in — is  quasi-contractual,  250  et  seg. 
■ right  of  indemnity  in — is  quasi-contractual,  255  et  seq. 

Survivorship  of  actions  depends  upon  the  fact  whether  estate  of  defendant  has 
been  positively  benefited  by  the  tort,  85-106.  A  mere  saving  is  not  re- 
garded in  law  as  a  positive  benefit  so  as  to  permit  action  against  the 
estate,  but  there  is  a  tendency  this  way,  104-100.  Of  course  a  recovery 
sliould  be  permitted  on  theory.  In  equity  where  there  has  been  a  fiduciary 
relation,  survivorship  obtains  irrespective  of  benefit,  note,  92-93. 

Tax — payment  of  illegal — and  right  of  recovery,  204-227. 

Tenants  in  common  cannot  sue  one  another  in  assumpsit  at  common  law;  their 

remedy  is  (in  absence  of  statute)  by  a  bill  in  equity,  296-299,  note. 
Tort,  wherein  it  diff"ers  from  quasi-contract,  85-106. 
and  waiver  of  tort  action,  107-137;  defendant  or  defendant's  estate  must 

have  received  a  positive  benefit  either  in  money  or  its  equivalent. 

feasors — right  to  contribution  among,  268-279.     Contribution  suggested, 

268;  denied,  269;  permitted,  269-279. 

Undisclosed  principal — payment  to — does  not  free  agent  in  law  of  quasi- 
contract,  575. 

Unjust  .enrichment  as  a  source  of  quasi-contract,  18,  33-37;  Bk.  11.  Chap.  I. 
Sec  iii.  280-351. 

Unsealed  instrument  and  the  measure  of  recovery  for  breach  thereof,  718-719, 
notes;  Wellston  Coal  Co.  r.  Franklin  Paper  Co.,  729-732  and  note  to  the 
case. 

Usury — recovery  for  usurious  payment,  154-158  and  note. 


772  SYLLABUS    INDEX 

Voluntary  payment — what  is  and  what  is  not,  204-227,  especially  note  212- 
215,  217,  note 

Waiver  of  tort  action,  106-137;  but  survivorship  is  only  permitted  where  de- 
fendant or  defendant's  estate  has  received  a  positive  benefit  in  money  or  its 
equivalent. 

Warranty  is  implied  in  modern  law  in  sale  of  chattels,  467-471;  in  sale  of 
realty,  warranty  must  be  express  to  permit  recovery  for  failure  of  title, 
471-480;  but  if  property  in  question  be  non-existent,  recovery  is  permitted, 
480-482,  and  note  482-484. 

vendor  by  modern  law  warrants  title  to  goods  sold  in  usual  course,  467- 

471;  but  one  dealing  with  a  pawnbroker  takes  (in  absence  of  statute  to 
the  contrary)  subject  to  all  infirmities  of  title,  462-467. 

Wife  held  not  liable  for  goods  furnished  her  after  death  of  husband,  and  in 
ignorance  thereof,  in  absence  of  a  special  contract,  434-437. 

should  be  permitted  to  recover  services  as  housekeeper  where  she  sus- 
tained relations  of  wife  and  acted  in  good  faith,  although  tort-feasor  had 
a  previous  wife  living  at  the  time,  344  and  note  348. 

taking  advantage  of  coverture  to  repudiate  contract  should  return  con- 
sideration received.  433;  and  the  same  as  to  infant,  437-438  and  note. 

Wilful  and  inexcusable  default  of  plaintiflF  is  no  bar  to  recovery,  but  the 
measure  of  recovery  in  such  case  should  be  the  value  of  plaintiff's  services 
as  against  defendant's  damages  for  non-performance,  Britton  v.  Turner, 
753-762. 

and    inexcusable    default   of   plaintiff   prevents   recovery   by   weight   of 

authority,  736-746. 

default  of  defendant  gives  plaintiff  a   right  to  recovery,  but  plaintiff 

must  return  any  object  of  value  received  under  the  contract  broken, 
Miner  v.  Bradley,  723,  726,  note. 

default   permits   recovery   in   some   jurisdictions   according   to  contract 

price;  in  others  and  according  to  better  reasons,  recovery  is  based  upon 
the  value  of  the  services  rendered,  irrespective  of  the  contract  price, 
726-735. 

default    in    performance    of    a    contract    permits    plaintiff    to    recover 

reasonable  value  of  services  against  a  defendant  in  default,  or  plaintiff 
may  sue  on  contract  for  damages  if  he  prefers,  713-735. 

default  of  plaintiff  does  not  present  recovery  according  to  English  law 

for  goods  received  and  retained  by  defendant  after  the  plaintiff's  breach, 
735-737;   otherwise  in  contracts  for  personal  services,  752-753. 

default  of  plaintiff  held  to  bar  his  recovery,  if  performance  for  stated 

time  or  the  completion  of  certain  amount  of  work  be  a  condition  precedent 
to  any  payment,  740-753. 

— —  default  of  plaintiff  does  not  prevent  recoverj'  if  plaintiff  believed  that  he 
was  performing  the  contract,  and  his  services  are  of  value  to  defendant, 
746,  and  note,  747-748. 


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